Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in Law360, in “Who Has Standing to Challenge Whitaker DOJ Appointment?” by Jody Godoy. (Read the full version – subscription required.)
Following is an excerpt:
Democratic senators have questioned the legality of President Donald Trump’s appointment of a Mueller critic to replace Attorney General Jeff Sessions, but it may take someone directly affected by what new acting Attorney General Matthew Whitaker does on immigration or other policy issues to challenge his appointment. ...
Stuart Gerson of Epstein Becker Green was acting attorney general in the early days of the Clinton administration. Gerson noted that, to the extent Whitaker is greenlighting indictments from Mueller’s office, there could theoretically be standing for the accused to sue. But if Whitaker were to slow indictments or subpoenas, that would not necessarily give rise to a suit.
“That is the underlying difficulty with all this. Who is the plaintiff who has suffered an injury as a result of this?” Gerson said.
There is also the idea that senators would be able to challenge the appointment in court as an end-run around their duty to give advice and consent on a nomination. Sen. Richard Blumenthal, D-Conn., is pursuing a similar standing argument in a suit challenging the constitutionality of Trump continuing to profit off his businesses while in office.
Gerson disputed that senators would win on that front in a potential challenge to Whitaker. But he said the more likely potential challengers are anyone who can claim to have been harmed by some action Whitaker will inevitably take as attorney general.
“There is plenty of ink that flows from the attorney general’s pen,” Gerson said. …
Gerson anticipated that immigration will remain a priority for Whitaker and that he may take action that could be challenged with an argument that he was not constitutionally appointed.
