Herrera challenges the legality of Whitaker’s appointment as Acting U.S. Attorney General

San Francisco, with four ongoing cases against the AG, seeks legal justification from the Department of Justice on Whitaker’s role

SAN FRANCISCO (Nov. 12, 2018) — City Attorney Dennis Herrera released the following statement after he sent a letter today to the U.S. Department of Justice questioning the constitutionality of President Donald Trump’s appointment of Acting Attorney General Matthew Whitaker:

“I have serious questions about the legality of Mr. Whitaker serving as the Attorney General of the United States. At no point in his Justice Department tenure has Mr. Whitaker been confirmed by the Senate. That appears to be unprecedented for someone serving as the country’s top law enforcement officer. The American people need to have faith that the head of their Justice Department lawfully holds the job. No Cabinet position demands more scrupulous fidelity to the Constitution and the rule of law than the Attorney General. 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.”

As Herrera noted in today’s letter: “Given that Attorney General Sessions’ resignation will affect San Francisco’s pending litigation, I ask that you provide legal justification for the appointment of Acting Attorney General Whitaker; otherwise, San Francisco may be forced to move the court to obtain additional guidance.”

Background

Herrera has four cases pending in court that were brought against former U.S. Attorney General Jefferson Sessions, who recently resigned at President Trump’s request. The defendant in those cases would become Whitaker if he lawfully holds the position. The cases cover:

  • The legality of President Trump’s executive order targeting sanctuary cities. Herrera filed this action on Jan. 31, 2017 and obtained a successful judgment finding the executive order unconstitutional. That ruling was subsequently upheld on appeal before the Ninth Circuit. Currently, the matter is back at the district court to resolve the scope and breadth of injunctive relief. (City and County of San Francisco v. Donald J. Trump, et al., U.S. District Court for the Northern District of California Case No. 3:17-cv-00485, filed Jan. 31, 2017.)
  • Conditions targeting sanctuary cities that were placed on 2017 Edward Byrne Memorial Justice Assistance Grants for law enforcement. San Francisco prevailed in U.S. District Court on Oct. 5, 2018, with the court finding that the grant conditions were unconstitutional and that San Francisco’s sanctuary policies were in compliance with federal law. (City and County of San Francisco v. Jefferson B. Sessions III, U.S. District Court for the Northern District of California Case No. 3:17-cv-04642, filed Aug. 11, 2017)
  • Conditions targeting sanctuary cities that were placed on 2018 Edward Byrne Memorial Justice Assistance Grants for law enforcement. Herrera filed the case on Aug. 22, 2018. (City and County of San Francisco v. Jefferson B. Sessions III, U.S. District Court for the Northern District of California Case No. 3:18-cv-05146, filed Aug. 22, 2018)
  • The rescission of six significant civil rights documents for which the Department of Justice has provided no meaningful explanation for their repeal as required by law under the Administrative Procedure Act. The documents provided protections for the poor, people of color, people with disabilities, and others. (City and County of San Francisco v. Jefferson B. Sessions III et al.,S. District Court for the Northern District of California Case No. 3:18-cv-02068, filed April 5, 2018)

Additional documentation is available on the City Attorney’s website at: sfcityattorney.org

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