The state also argues that the appointment of Whitaker violates a provision of the Constitution that specifies top positions in the government can be filled only through presidential nomination and confirmation by the Senate. Because Whitaker's nomination bypassed that process, the state says, he cannot serve as acting attorney general.
"It is troubling, to say the least, that the president is attempting to fill a 'vacancy' he created himself with a 'temporary' appointment that might last for many months or years," says Frosh, "especially when, as there, the temporary appointee has not been confirmed by the Senate."
Maryland's legal papers say Whitaker's appointment marks the first time since 1868, when Congress passed a succession law for the Justice Department, that someone named to be acting attorney general was not already serving in a Senate-confirmed position.
