Minority Leader Nancy Pelosi organized an emergency call Thursday night for House Democrats to discuss next moves to protect the Mueller investigation in light of President Trump forcing Attorney General Jeff Sessions to resign and replacing him with an unqualified loyalist who has not been confirmed by the Senate to serve in the Justice Department's top spot.
CNN:
Two sources said that [incoming Judiciary chairman Jerry] Nadler (NY), presumptive Intelligence Chairman Adam Schiff of California and presumptive Oversight Chairman Elijah Cummings of Maryland spoke to explain the steps they had already taken since [Matthew] Whitaker's appointment, including directing numerous agencies to preserve documents in the Mueller investigation and related to Sessions' firing.
The letters, which signaled that Democrats plan to investigate the ousting when they're in the majority next year, were the "first move" to protect Mueller from being fired, Schiff told CNN's Jake Tapper on Thursday.
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The Democratic committee leaders also said they're going to try to push Republicans to include legislation to protect the special counsel in the spending bills that must be passed in December, as well as measures that would preserve documents, according to a Democratic aide.
Nadler said on CNN's "Erin Burnett OutFront" Democrats could make a bill protecting Mueller's independence a "condition of passage" to fund the government next month.
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The committee leaders also discussed the legal arguments that have been made that Whitaker's appointment is unconstitutional because he hasn't been confirmed by the Senate for any position, though Democrats are still mulling what steps, if any, might be taken, one source said.
On the Senate side, Minority leader Chuck Schumer (D-NY) sent President Trump a letter Friday asking him to explain why he chose Whitaker.
"Mr. Whitaker is a political appointee who is not serving in a Senate confirmed position in the Justice Department. I am not aware of any precedent for appointment of an official who has not been confirmed by the Senate to serve as acting Attorney General," Schumer wrote in the letter.
He added that the decision to name Whitaker, who was previously Jeff Sessions's chief of staff, "raises a number of questions regarding the propriety and even the constitutionality of that action" and that he wants answers about Trump's "motivations" behind the decision.
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Schumer said he couldn't see a "legitimate reason" for appointing Whitaker when [Deputy Attorney General Rod] Rosenstein had been Senate confirmed and that the decision was "clouded by unresolved constitutional questions."
Schumer is asking Trump to explain why he leapfrogged over Rosenstein, if he discussed the decision of who to appoint as acting attorney general with anyone else in the administration or if he asked for advice from the Justice Department's Legal Counsel.
He also wants to know if he discussed Mueller's investigation with Whitaker before he was appointed as acting attorney general or if he made Whitaker take a "pledge of loyalty."
In the meantime, other Senate Democrats are considering suing the Trump administration.
The suit would seek to invalidate Whitaker’s appointment, by arguing that it was an unconstitutional violation of the Senate’s “advise and consent” powers. If successful, it would force Trump to either formally nominate a replacement for former Attorney General Jeff Session or elevate, on an acting basis, someone from within the department who had already received Senate confirmation.
“We have been doing a deep dive on potential causes of action concerning the constitutional issues raised by the Whitaker appointment and also obvious obstacles that could be raised to any court initiative, not the least of them standing," Sen. Richard Blumenthal (D-CT) told The Daily Beast. "We’ve been through a few of these issues in my emoluments lawsuit, principally the standing one. So we’re looking at the array of legal flaws in the appointment and considering which of them are challengeable in court.”
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David Rivkin, a constitutional attorney for Baker Hostetler who served in the Ronald Reagan and George H. W. Bush administrations, said the Senate would have to vote as a body to have institutional standing to sue over Whitaker’s appointment––like the House did when it sued over the Affordable Care Act.
“The case law is absolutely clear: A rump group of senators can never have standing to vindicate institutional authority that they claim is being infringed because it’s not theirs to vindicate, any more than if a corporation or an association sues in federal court, it cannot be done by a janitor or a third assistant to a fifth deputy,” he said.
Democrats plot to address 'crisis moment' for Mueller investigation (CNN)
Schumer questions Trump on legality of acting AG pick (The Hill)
Senate Dems Explore Suing Trump Over Matt Whitaker Appointment (Daily Beast)