Three senators, Blumenthal, Whitehouse, and Hirono, have now filed a complaint challenging the appointment of Matthew Whitaker as Acting Attorney General.  Their complaint differs slightly from the other two motions previously filed that challenge Whitaker’s appointment in two respects.

First, the Senators allege that they have standing to challenge the appointment because they:

[A]re sitting U.S. Senators who were denied the right to vote guaranteed to them by the Appointments Clause. They bring this lawsuit to ask the Court to remedy that injury and vindicate their ability to fulfill their constitutional role.

Second, they set forth in greater detail the particular substantive areas that they might direct attention to if allowed to investigate whether to vote to extend the advice and consent of the Senate to Whitaker’s nomination:

1. Senators would have had the opportunity to consider Mr. Whitaker’s criticism of the two active federal law enforcement matters involving President Trump, his campaign, and his close associates, including the investigation currently being conducted by Special Counsel Robert Mueller into whether those associated with Mr. Trump’s presidential campaign—including the President and members of his family—cooperated with Russian efforts to interfere in the 2016 presidential election, and whether the President or others have attempted to obstruct the investigation. Mr. Whitaker has been a vocal and frequent critic of the Mueller investigation. Despite the ongoing nature of the investigation into possible coordination between the Trump campaign and the Russian government, as well as possible obstruction of justice, Mr. Whitaker has made public statements denying that the President or his associates engaged in such obstruction of justice or in a conspiracy with the Russian government.  And despite having made those statements, Mr. Whitaker has not recused himself from supervision of these two investigations.  ¶¶ 25-26 at Complaint 9-10 (footnote omitted).
2. Senators also could consider public comments Mr. Whitaker has made about the proper interpretation of the Constitution and other legal matters. For instance, Mr. Whitaker has suggested that the judiciary should not be “the final arbiter of constitutional issues,” which runs directly counter to centuries of established law concerning our Constitution’s separation of powers, see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).8He also has said that states should be able to “nullify” federal law,an idea the Framers of the Constitution rejected when they adopted the Supremacy Clause, which makes federal law “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. ¶ 27 at Complaint 11 (footnote omitted). 
3. Senators also could consider that Mr. Whitaker was on the board of a company that allegedly defrauded consumers and is under investigation by the FBI, which is part of the very Department that Mr. Whitaker has been designated to lead. From October 2014 until shortly before he joined the DOJ, Mr. Whitaker was a member of the advisory board of World Patent Marketing, a company that promised clients it would patent and market their ideas for a sizable fee. Yet the company allegedly took clients’ money—amounting to millions of dollars—and provided almost no services in return. Earlier this year, the company was ordered by a court to pay more than $25 million to the consumers who were defrauded. The FBI is also conducting a criminal investigation of the company’s conduct. Both the court order and the criminal investigation relate to conduct that occurred while Mr. Whitaker was on the company’s board.  ¶ 28 at Complaint 11-12 (footnote omitted). 
4. Finally, Senators could consider Mr. Whitaker’s contacts with the White House regarding specific enforcement matters—serving as the White House’s “eyes and ears” within the DOJ, according to White House Chief of Staff John Kelly—in violation of policies governing contacts between the DOJ and the White House.  ¶ 29 at Complaint 12 (footnote omitted).

The Trump Administration appears to be stonewalling with respect to one relevant area that bears on Whitaker’s qualifications for the top job at Justice–his financial disclosures.  This area of investigation has not been the subject of a great deal of attention–yet.

A petition for certiorari is pending in a case captioned Michaels v. Whitaker. The attorneys for the petitioner, lead by Thomas C. Goldstein, have filed a motion in the Supreme Court challenging the authority of Matthew Whitaker to act as the Attorney General.  (The motion continues to reference the case as Michaels v. Sessions, thus not even conceding that, until the motion is granted or denied,  Whitaker is even the Acting Attorney General.  Goldstein is representing the State of Maryland and filed Maryland’s challenge to Whitaker’s authority reported on here.)

Now, this motion was reported in the Washington Post at 6:48 P.M. last evening, but not only was there was no link to the motion itself, but the article even omitted the name of the case.  Thus, based solely on the article, one could not review the motion or even find it easily.  I found the name of the case on the CNN website and was thus was able to track down the motion.

Why do the news media insist on not providing links to court documents that are the subject of stories they are reporting on?

In any event, score this as a semi-scoop for the RBC.

Update  Mark has reminded me that in my haste to post and thus make the motion filed in the Supreme Court widely available, I had failed to make it clear how the motion filed in the Supreme Court differed from the motion filed by in the Maryland litigation.  First some background on the underlying dispute and then the procedural importance of the motion filed in the Supreme Court yesterday.

The underlying dispute arises out of two statutes that are in seeming conflict:  The Attorney General Succession Act (28 U.S.C. 508) and the more general Vacancies Act (5 U.S.C. 3345 et seq.).  The Attorney General Succession Act sets forth a line of succession for the office of Attorney General as follows:

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

All of those officers described in the Attorney General Succession Act are appointed by the President with the advice and consent of the Senate.  Whitaker, at the time of his appointment as Acting Attorney General, had not been in an office that required the advice and consent of the Senate.

The Vacancies Act has no such “advice and consent” limitation on the person who may be appointed.

The motions filed in both the Maryland litigation and before the Supreme Court raise the same issue:  Did Rod Rosenstein, by virtue of the Attorney General Succession Act, automatically become the Acting Attorney General or does Whitaker’s appointment, by virtue of the Vacancies Act, make him the Acting Attorney General.  As the motion filed in the Supreme Court nicely puts it:

Under the Attorney General Succession Act, Rod Rosenstein is the Acting Attorney General. But under the Vacancies Act, Matthew Whitaker is the Acting Attorney General. Only one of those can be true. Those officials cannot both serve and not serve at the same time — Schrodinger’s Acting Attorneys General.

Motion at 13.

The procedural difference arises out of the difference between Supreme Court review and that of a federal district court.  Why is the question ripe for Supreme Court review?  I think that the motion in the Supreme Court provides a full and adequate answer:

From the outset, Movant freely acknowledges that no characteristic of this case distinguishes it from any other in which Mr. Sessions was a named party. But the fact that the same issue has already arisen in multiple cases and has the potential to arise in thousands more is a feature, not a bug, of this promptly filed motion. There is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.

Often, that will not be a ministerial question, as the Attorney General has numerous personal responsibilities under federal law. Every day, Mr. Whitaker would presently be expected to take a number of significant official acts, including appointing immigration judges, authorizing national security warrants, determining not to enforce federal statutes on the ground that they are unconstitutional, approving or withdrawing regulations, and overseeing the investigation of Special Counsel Robert Mueller. See, e.g., 28 U.S.C. §§ 510-19; 50 U.S.C. § 1804; 8 C.F.R. §§ 1003.9-1003.10; 28 C.F.R. pt. 600.

If this Court declines to resolve this question immediately and instead determines several months in the future that Mr. Whitaker’s appointment was always invalid, then “unwinding” all of those personal orders would be a fraught and disruptive exercise that could embroil the federal courts in innumerable collateral disputes. Cf. 5 U.S.C. § 3348(d)(2) (actions of officials not qualified under Vacancies Act “may not be ratified” later). Deciding this Motion promptly avoids those significant difficulties. Even if this Court now determines that the President in fact validly appointed Mr. Whitaker as Acting Attorney General, that ruling would equally benefit the administration of justice by removing the cloud of uncertainty over the appointment and by resolving the burgeoning number of challenges to it that are otherwise likely to be filed in the lower courts.

Motion at 1-2.

Thus, we have a question that will affect thousands of cases and there’s a real necessity to resolve the issue quickly.  As the motion before the Supreme Court puts it:

Leaving the question to be decided in the first instance by district courts and the courts of appeals would as a practical matter amount to nothing more than different judges “taking sides” while waiting for the issue to reach this Court.

Motion at 3.

The motion in the Supreme Court then points out that the motion in the Maryland action will likely not be argued until December 19, 2019. (My emphasis.)  However, under pertinent Supreme Court Rules, the United States could be required to file its brief by November 26 (with Amicus Briefs due that same day), with the reply brief being due by December 3.  Motion at 3-4 and fn. 1.

The motion in the Supreme Court also differs in one major respect from the motion in the Maryland action.  Specifically, in somewhat veiled language, it highlights the threat to the Mueller investigation if the Government’s position prevails.  In arguing that Congress had not intended that the broad discretion under the Vacancies Act apply to the office of Attorney General:

Congress also would have had in mind President Nixon’s order — issued to a succession of Senate-confirmed officials specified by Section 508 — to fire special prosecutor Archibald Cox. Congress would not have responded to the Saturday Night Massacre by granting the President even broader authority to install his own silent assassin.

Motion at 20 (emphasis added).

In the case of Democratic Executive Committee of Florida v. Detzner, the United States District Court for the Northern District of Florida (per Walker, J.) issued the following order:

Defendant Detzner [in his capacity as Florida Secretary of State] is ordered to issue a directive to the supervisors of elections (with this Order attached) advising them (1) Florida’s statutory scheme as it relates to curing mismatched-signature ballots has been applied unconstitutionally; and (2) in light of this Court’s order, they are required to allow voters who have been belatedly notified they have submitted a mismatched-signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m. The supervisors of elections shall allow mis-matched-signature ballots to be cured in the same man-ner and with the same proof a mismatched-signature ballot could have otherwise been cured before November 5, 2018, at 5:00 p.m.

The basis for the decision is effectively set forth in these two paragraphs:

 In this case, the Plaintiffs have thrown a red flag. But this is not football. Rather, this is a case about the precious and fundamental right to vote—the right preservative of all other rights. And it is about the right of a voter to have his or her vote counted. There is no doubt there must be election laws. There is no doubt that to run an election, the state must impose deadlines and rules to govern an efficient and transparent election process. There is no doubt that election officials must make certain calls, under the rules, that deserve review. And there is no doubt some of those calls may hinge on highly subjective factors.

The precise issue in this case is whether Florida’s law that allows county election officials to reject vote-by-mail and provisional ballots for mismatched signatures—with no standards, an illusory process to cure, and no process to challenge the rejection—passes constitutional muster. The answer is simple. It does not.

The legality of the appointment of Matthew Whitaker as Acting Attorney General has been questioned.

I have posted the memorandum filed yesterday in federal court by the State of Maryland challenging his appointment.

I have also posted the memorandum filed by the Justice Department Office of Legal Counsel defending the legality of his appointment.

I will try to update this as further developments warrant.

Yet another voting rights case and another partial victory for those seeking to preserve the right to vote.

In Martin v. Crittenden, the U.S. District Court for the Northern District of Georgia (per May, J.) held that the Gwinnett County, Georgia Board of Election Members:

[A]re hereby ENJOINED from rejecting absentee ballots containing an error or omission relating to the absentee voter’s year of birth and are ORDERED to count such ballots in the November 6, 2018 election [and] are ORDERED to delay certification until such ballots have been counted.

I am old enough to recall that one of the worse things you could be called in a political or social debate was “Un-American.”  Well, those who try to suppress voting and limit voting rights are truly and completely Un-American.

CNN and Jim Acosta have filed a lawsuit to reinstate Acosta’s White House press credentials.  I have posted a copy of the complaint.

If nothing else, the complaint sets forth in an organized fashion the facts of the matter, as opposed to the lies that emanate from the Trump propaganda machine.

The United States District Court for the Northern District of Georgia (per Totenberg, J.) has just issued an injunction:

1. Ordering the Georgia Secretary of State’s Office “to immediately establish and publicize on its website a secure and free-access hotline or website for provisional ballot voters to access to determine whether their provisional ballots were counted and if not, the reason why;”
2. Ordering the Georgia Secretary of State’s Office “to direct each of the 159 county election superintendents to similarly publicize the availability of the hotline or secure website on the county and county election websites;”
3. Enjoining the Georgia Secretary of State “from certifying the results of the election prior to Friday, November 16 at 5:00 P.M.;”
4. Ordering the Georgia Secretary of State, upon receipt of the certified returns from the county election supervisors, to either: (i) direct the county election superintendents to remit certified returns to all counties with 100 or more provisional ballots and to engage in a good faith review of the eligibility of voters issued provisional ballots due to code PR (“provisional registration”), using all available registration documentation.  Such documentation should include registration information made available by voters themselves, rather than relying solely on the registration information in eNet, and should also include any audit trails documenting modifications or alterations of registration data that Merritt Beaver, the SOS Chief Information officer, testified exists to show changes regarding a voter’s registration status in the electronic database; or (ii) engage in an independent review of this information using documentation available to the Secretary of State and the information referenced above.  To avoid any delay in the final certification process, the Secretary of State should engage in this review on a rolling basis as certified results from the local county superintendents are received. This remedy does not require the extension of any mandated elections deadlines provided under Georgia’s election regime or the creation of any entirely different processes outside the parameters of the current procedures in place that govern the actions of the local elections officials or the Secretary of State in verifying voter eligibility, tabulating, computing, or canvassing votes, and verifying the accuracy of the voter returns.” (Statutory citation omitted.)

I note that, as of 11:35 P.M., neither the Washington Post nor the New York Times has reported this story.  In other words, I scooped them.

Today, the Ninth Circuit affirmed the preliminary injunction enjoining the Dept. of Homeland Security from rescinding the Deferred Action for Childhood Arrivals (“DACA”).  The case is Regents of the University of California v. USDHS.

Forget the law.  This is what the case is about:

It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.

On the surface, Dulce Garcia appears no different from any other productive—indeed, inspiring—young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.

Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. DACA also allows recipients to apply for authorization to work in this country legally, paying taxes and operating in the above-ground economy. Garcia, along with hundreds of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity.

Today, a three-judge panel in the United States District Court for the District of Maryland held that the manner in which the boundaries of Maryland’s Sixth Congressional District were drawn was unconstitutional.  The case is Benisek v. Lamone.  The Court ordered that the boundaries be redrawn in time for the 2020 congressional election.

The plaintiffs argued:

[T]hat in enacting the 2011 law [establishing the district’s boundaries], the State deliberately diluted [the plaintiffs’] votes and burdened their associational interests based on their party affiliation and voting history, in violation of their First Amendment rights.

The Court found that:

• The State specifically targeted voters in the Sixth Congressional District who were registered as Republicans and who had historically voted for Republican candidates.
• The State specifically intended to diminish the value of those targeted citizens’ votes by removing a substantial number of them from the Sixth District and replacing them with Democratic voters for the purpose of denying, as a practical matter, the targeted voters the opportunity to elect the candidate of their choice.
• The State gave effect to its intent by, on net, removing about 66,000 Republican voters from the Sixth District and adding 24,000 Democratic voters in their place.
• The State meaningfully burdened the targeted Republican voters’ representational rights by substantially diminishing their ability to elect their candidate of choice.
• The State also burdened the Republican voters’ right of association, as demonstrated by voter confusion, diminished participation in Republican organizational efforts in the Sixth District, and diminished Republican participation in voting, as well as decreased Republican fundraising.
• These injuries were the direct result of the State’s purpose to convert the Sixth District from a solid Republican district to a Democratic district.

A decision today from the Eastern District of North Carolina illustrates that it even administrations that are environmentally friendly sometimes lose their way.

The decision, in a case captioned Red Wolf Coalition v. U.S. Fish & Wildlife Service, addressed actions and failures to act by the Fish & Wildlife Service during the Obama Administration.   In particular, in 2014 and 2015 the Fish & Wildlife Service issued “take authorizations.”  (A “take” is defined by the Endangered Species Act to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).  See fn. 6, slip op. at 2.)

The opinion is worth reading if only to get a sense of the complexity of the efforts to save this endangered species, including the sterilization of coyotes to prevent interbreeding and the steps that have to be shown to be fruitless before a take authorization can issue.