The state of Maryland is expected to ask for an injunction on Tuesday saying Matthew Whitaker is not the legitimate acting attorney general, claiming instead that Deputy Attorney General Rod Rosenstein Rod RosensteinDOJ kept investigators from completing probe of Trump ties to Russia: report Five takeaways from final Senate Intel Russia report FBI officials hid copies of Russia probe documents fearing Trump interference: book MORE should have been promoted to the position, The New York Times reported.

The injunction will come as part of the state's lawsuit against former Attorney General Jeff Sessions Jefferson (Jeff) Beauregard SessionsGOP set to release controversial Biden report Trump's policies on refugees are as simple as ABCs Ocasio-Cortez, Velázquez call for convention to decide Puerto Rico status MORE, according to the Times, who resigned at President Trump Donald John TrumpBiden on Trump's refusal to commit to peaceful transfer of power: 'What country are we in?' Romney: 'Unthinkable and unacceptable' to not commit to peaceful transition of power Two Louisville police officers shot amid Breonna Taylor grand jury protests MORE's request last week. A federal judge in Maryland will now have to name Sessions's successor in the lawsuit, and the state is planning to argue Whitaker's appointment to the role was not constitutional, according to a draft filing obtained by the newspaper

ADVERTISEMENT

"[Trump may not] bypass the constitutional and statutory requirements for appointing someone to that office,” the plaintiffs reportedly wrote in the draft filing.

Since Whitaker's appointment last Wednesday, Democrats have called on him to recuse himself from Robert Mueller Robert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE's Russia probe, citing his public comments criticizing the special counsel.

Whitaker once declared there "no collusion" between Trump and Moscow and said the special counsel's investigation was a waste of time that could be undercut by denying it funding.

Maryland will reportedly ask Ellen Hollander of the Federal District Court for the District of Maryland to rule Whitaker's appointment unlawful, pointing to the president's use of the Vacancies Reform Act to fill the vacancy left by Sessions. The state will argue that Trump's invocation of the statute was atypical, as it is intended for routine positions and not the Department of Justice's highest post, the Times reported.

Another statute specifically says the deputy attorney general should be appointed if the attorney general leaves the position, the filing says.