Then-US Attorney General Jeff Sessions arrives at the Senate to testify as Matthew Whitaker, the man named to replace him last week, smiles in the background (Saul LOEB)

Washington (AFP) – President Donald Trump’s appointment of Matthew Whitaker to lead the US Department of Justice was called “unlawful” Tuesday in a court challenge less than one week after he was named acting attorney general.

The state of Maryland asked a federal judge to block Whitaker from acting on behalf of the department in an ongoing court case on health care policy, arguing that he had not been approved by the US Senate as required by law.

But Maryland state Attorney General Brian Frosh made clear that the challenge was also a political move against someone that Democrats believe Trump chose to protect his presidency from the Russia collusion investigation of Special Counsel Robert Mueller.

“President Trump’s brazen attempt to flout the law and constitution in bypassing Deputy US Attorney General Rosenstein in favor of a partisan and unqualified staffer cannot stand,” Frosh said in a statement.

Trump, he said, has chosen “an unqualified and unconfirmed partisan to be the nation’s chief law enforcement officer in order to protect himself rather than the rule of law.”

Frosh’s request for an injunction against Whitaker was the first official challenge to his appointment last Wednesday to replace fired attorney general Jeff Sessions.

The appointment has raised controversy because of Whitaker’s limited experience and his record of vocal opposition to the Mueller investigation, which he has now taken control of from Rosenstein.

Maryland said the appointment violated a fundamental law requiring the top government officials to be confirmed by the Senate — which Rosenstein has been.

Legal experts have warned that Whitaker could jeopardize Justice Department legal cases if his appointment is found to be illegal.

“Whitaker’s appointment is unlawful,” the state said in a court filing, which argued it could damage Maryland’s ongoing health care case against the government.

Whitaker had been Sessions’ chief of staff for a year, acting as liaison to the White House as Trump’s relations with Sessions became increasingly strained.

Before that, he was a federal prosecutor in Iowa who became a television and radio commentator after losing two races for political office.

In his role as a commentator, he made repeated comments last year dismissing the basis for the Mueller investigation and suggesting it be starved for funds to shut it down.

– Pressure to recuse –

The Maryland case involves apparently conflicting laws governing succession at the Justice Department. 

“It’s a serious question and one that’s not clearly resolved by anything that the Supreme Court has said,” said Fordham University Law School Professor Andrew Kent.

“There could be many persons who could challenge it, for instance somebody who is criminally prosecuted under his authority … I think that they would have a good argument.”

“Maybe his whole holding of the office is constitutionally null and void.”

Meanwhile senior Democrats called for Whitaker to recuse himself from the Mueller probe because of his past statements.

On Monday, Senator Chuck Schumer, Representative Nancy Pelosi, and other top party legislators sent a letter to the Justice Department’s top ethics official outlining their concerns.

“There are serious ethical considerations that require Mr Whitaker’s immediate recusal from any involvement with the Special Counsel investigation,” they said. 

“Mr Whitaker’s statements indicate a clear bias against the investigation that would cause a reasonable person to question his impartiality,” they said.

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