San Francisco City Attorney Dennis Herrera speaks during a news conference at San Francisco’s City Hall Tuesday, April 25, 2017. (Jessica Christian/S.F. Examiner)

SF City Attorney questions legality of Trump’s pick to replace Sessions

City Attorney Dennis Herrera, who is representing San Francisco in four lawsuits against the federal justice department, criticized President Donald Trump on Monday for his appointment of Matthew Whitaker as acting attorney general.

In a letter to the U.S. Department of Justice, Herrera questioned the legality of Trump naming a replacement for former Attorney General Jeff Sessions who has never been confirmed by the Senate.

“That appears to be unprecedented for someone serving as the country’s top law enforcement officer,” Herrera said in a statement. “This is a position where the officeholder should be beyond reproach. That is why we need to make sure that the president’s appointment here is lawful.”

The DOJ did not immediately respond to a request for comment.

Sessions resigned at the request of the president last week after facing repeated attacks from Trump for recusing himself from overseeing the DOJ investigation into Russia’s involvement in the 2016 presidential election.

By choosing Whitaker to replace Sessions, Herrera argued that Trump did not act in compliance with the federal law, Section 508, which outlines a succession plan and states that the deputy attorney general may serve as a replacement in the absence of an attorney general. Rod Rosenstein is the deputy attorney general.

Herrera said Trump also “ran afoul” of the Appointments Clause, Article 2, Section 2, of the Constitution, which states that the president can appoint “Officers of the United States” upon “Advice and Consent of the Senate.”

Instead, Herrera said Trump appears to have appointed Whitaker under the Federal Vacancies Reform Act, which allowed President George W. Bush to appoint a replacement for then-Attorney General Alberto Gonzales in 2007 who was not an immediate successor as outlined in Section 508.

But Herrera argued that Trump appointing an acting attorney general under the Federal Vacancies Reform Act who has not been confirmed by the Senate, creates “constitutional tensions.”

Bush’s appointment, Peter Keisler, had previously been confirmed by the Senate for a different position in the justice department.

“Acting Attorney General Whitaker is not similarly situated,” Herrera wrote in the letter. “His previous position within the Department of Justice was not one of the positions enumerated in [Section 508] nor did his previous position carry the obligation and imprimatur of Senate confirmation.”

Herrera asked the justice department for a legal explanation of the appointment and threatened to seek additional guidance from the court if one is not provided.

If he remains acting attorney general, Whitaker will replace Sessions as a defendant in the four cases San Francisco filed against Sessions.

The cases include the challenge San Francisco filed in January 2017 against an executive order Trump signed seeking to defund sanctuary cities and two lawsuits The City filed challenging conditions Sessions placed on federal law enforcement grants that targeted sanctuary cities.

mbarba@sfexaminer.com

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