Trump appointment of acting AG likely violated constitution, Democrats charge

President Donald Trump's appointment of a new acting attorney general faced growing scrutiny on Friday, with the U.S. Senate's top Democrat accusing him of ignoring the proper line of succession and some legal experts calling it unconstitutional.

Trump named Matthew Whitaker to replace former attorney general Jeff Sessions, who was forced out on Wednesday. The move allows Whitaker to oversee a U.S. probe into Russian meddling in the 2016 presidential election that has hung over Trump's presidency, and which Whitaker has criticized in the past.

Senate Democratic leader Chuck Schumer said Deputy Attorney General Rod Rosenstein, a career Justice Department official who has already been confirmed by the Senate, should have been named to the open position instead of Whitaker.

"You ignored the statutory line of succession," Schumer said in a letter to Trump released publicly on Friday.

"The appointment of Mr. Whitaker is further clouded by unresolved constitutional questions about the legality of such an action," Schumer said in the letter.

As acting attorney general, Whitaker has assumed oversight of special counsel Robert Mueller's investigation, which was authorized to look into "any links and/or co-ordination between the Russian government and individuals associated with the campaign of President Donald Trump."

Meanwhile, a federal Appeals Court in Washington weighing a legal challenge to Mueller's authority said Friday it wanted to know whether the sudden ouster of Sessions earlier this week could impact or change the outcome of how it should rule.

The court's order directed each party in the case to file briefs by Nov. 19 outlining, "what, if any effect, the Nov. 7, 2018, designation of an acting attorney general different from the official who appointed special counsel Mueller has on this case."

The order came one day after a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on whether Mueller was unlawfully appointed by Rosenstein in May 2017 and wielded too much power.

Rosenstein helped launch the probe after Trump's firing of FBI Director James Comey and the recusal of Sessions into inquiries into Russia interference. Sessions had interactions with Russia's ambassador to the U.S. while a Trump advocate during the 2016 U.S. election campaign.

'What a stupid question that is'

Speaking to reporters Friday from the White House, Trump said of the crucial appointment he made, "I don't know Matt Whitaker."

The claim was greeted with skepticism, given Whitaker's frequent presence at the White House as chief of staff to Sessions.

"Matt Whitaker has a great reputation and that's why I hired him," the president said, pointing to the 49-year-old's time as a U.S. attorney in Iowa.

Last month, Trump told Fox News in an interview he knew Whitaker, calling him "a great guy."

When a CNN reporter asked if Trump wanted Whitaker to "rein in" Mueller's investigation, Trump said: "What a stupid question that is. What a stupid question."

Trump had long publicly mused about firing Sessions, whose recusal angered him. Trump said Friday he had not spoken to Chris Christie, the former governor of New Jersey whose name has often been floated as a potential permanent successor to Sessions.

Concerns about succession, bias

Former U.S. attorney general Alberto Gonzales told CBC News he was "profoundly concerned" by the appointment of Whitaker.

Gonzales said a decision is made to curtail or end the Mueller probe shouldn't be made by the acting attorney general, but by someone within the normal lines of the chain of authority, either the deputy attorney general or the solicitor general.

He said the line of succession does not include the attorney general's chief of staff, the role Whitaker was serving under Sessions.

John Yoo, like Gonzalez, a Republican veteran of George W. Bush's Justice Department, said "the Supreme Court made clear that the attorney general is a principal officer," in a 1998 case.

"Therefore, Whitaker cannot serve as acting attorney general.… Any other officer in the Justice Department who was appointed through advice and consent can serve, including the deputy AG, the solicitor general and the assistant AGs," said Yoo, now a law professor at the University of California, Berkeley.

Schumer and other Democrats have also called on Whitaker to recuse himself as he has previously made negative comments about the probe in several media appearances over the past 18 months.

In one appearance, he defended a June 2016 Trump Tower meeting between Donald Trump Jr. and a Kremlin-connected Russian lawyer, saying, "You would always take that meeting."

The meeting has been an area of inquiry by both Senate and House committees investigating Russian interference, and likely Mueller's probe.

In an op-ed, Whitaker said Mueller would be straying outside his mandate if he investigated Trump family finances and in a talk radio interview he maintained that there was no evidence of collusion between the Kremlin and the Trump campaign.

So far, Senate majority leader Mitch McConnell has balked at taking up legislation that would protect Mueller from dismissal and allow him to complete the investigation.

Republican Sen. Jeff Flake on Thursday said he and his Democratic colleague Chris Coons would push to bring legislation protecting Mueller to the Senate floor.

"After the firing of the AG, it is more important than ever to protect the Special Counsel," Flake, a frequent Trump critic who is leaving the Senate early next year, wrote on Twitter.

Speaking in Kentucky, McConnell said he expects Trump to nominate a new permanent attorney general "pretty quickly." McConnell said he expects Whitaker to be "a very interim" attorney general.