Lawyers for former agricultural products executive Doug Haning filed a motion asking a federal court to rule that Matthew Whitaker’s installation atop the Justice Department was illegal. | Pablo Martinez Monsivais/AP Photo Legal Texas businessman challenges acting AG’s legality 'This certainly appears to be a uniquely promising context,' said University of Texas law professor Stephen Vladeck.

A Texas businessman facing a federal criminal case over distribution of substandard pet food ingredients is mounting a novel challenge to President Donald Trump’s hotly debated appointment of Matthew Whitaker as acting attorney general.

Lawyers for former agricultural products executive Doug Haning quietly filed a motion Tuesday asking a federal court in St. Louis to rule that Whitaker’s installation atop the Justice Department, made in the wake of Trump’s ouster of Attorney General Jeff Sessions last week, was illegal.


In theory, such a legal challenge could be pursued by any defendant under federal prosecution. However, Haning’s move may have added traction because of the unusual role the former attorney general has played in his case. Because of a recusal by the local federal prosecutor in the case — St. Louis-based U.S. Attorney Jeffrey Jensen — the government’s filings in Haning’s case bear Sessions’ name as ultimately responsible for the prosecution.

As acting attorney general, Whitaker now appears to have assumed that role — squarely teeing up the legitimacy of his appointment as an issue open to litigation in the criminal case.

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“For a federal criminal prosecution, the rule of law is profoundly important and the Department of Justice in this case is not upholding the rule of law,” Justin Gelfand, one of Haning’s current lawyers, told POLITICO. “As a matter of federal law, the attorney general is in charge of this prosecution, but the office of attorney general is currently staffed by someone appointed in violation of Article II of the Constitution.”

The White House and the Justice Department vehemently dispute that assertion and argue that Trump’s decision to tap Whitaker was both constitutional and clearly authorized by a 1998 law, the Federal Vacancies Reform Act.

Indeed, on Wednesday, Justice’s Office of Legal Counsel released a formal, 20-page legal opinion dismissing contentions by some prominent lawyers on the left and the right that the move unconstitutionally usurps the Senate’s authority to pass judgment on presidential appointees to the Cabinet and other senior posts.

However, the key question at the moment may not be who is ultimately right on that legal issue, but which efforts to raise it can gain traction and how quickly.

On Tuesday, Maryland Attorney General Brian Frosh fired what appears to be the first shot in that battle by seeking to have a judge declare that Deputy Attorney General Rod Rosenstein, and not Whitaker, is in fact the acting attorney general. Frosh brought the motion as part of a lawsuit the state filed in September, accusing Sessions of dereliction of duty for failing to defend parts of the Obamacare law.

A judge has set a Dec. 19 hearing on the Maryland challenge. No hearing has yet been set on Haning’s motion, but some lawyers believe the enhanced role the attorney general plays or is supposed to play in cases involving recusals could make them fertile ground for challenges to Whitaker's authority.

"This certainly appears to be a uniquely promising context within which to challenge the validity of Whitaker’s appointment," said University of Texas law professor Stephen Vladeck.

One twist in Haning’s case is that the prosecution is at least nominally being overseen by one senior official other than Sessions (and now, presumably, Whitaker): Timothy Garrison, the U.S. Attorney in Kansas City, Mo.

Garrison was confirmed by the Senate in April, so he might have authority to initiate and pursue criminal cases even if the courts conclude that Whitaker does not. However, it seems unlikely that Garrison would have authority on his own to bring, maintain or shut down a prosecution outside his district. Federal law appears to place that power squarely in the hands of the attorney general.

Haning’s motion says the recusal in his case has been a kind of a fig leaf, purporting to shift the case out of Jensen’s office even while it continues to be prosecuted by three attorneys who are members of his staff. Jensen recused himself because he used to be Haning’s defense attorney.

“Instead of actually recusing the U.S. Attorney’s Office in its entirety, the Government assigned this case to three [assistant U.S. attorneys] in this district, gave them a different title solely for purposes of this case, and somehow concluded that the conflict of interest requiring recusal has therefore suddenly—and magically—disappeared,” Haning’s defense team wrote. “The reality is it has not. No defendant should be prosecuted by his prior defense attorney or by those who serve directly under him.”

The indictment filed against Haning in February accuses him of directing a long-standing conspiracy to secretly blend chicken feathers and bones into what pet food companies were told was higher-grade chicken or turkey meal products. The government contends the practice violated federal laws against sale of adulterated ingredients, although officials say the substitutions posed no health danger to pets.

The Justice Department did not respond to a request for comment on the motion by Haning’s lawyers or to a request to detail the nature of the recusal in the case.

However, a court filing earlier this year in another case involving a recusal of local federal prosecutors provides some insight into the process.

After former Massey Energy CEO Don Blankenship filed a motion accusing prosecutors of withholding evidence during the 2015 trial in which he was convicted of covering up safety violations at a mine where 29 miners were killed, prosecutors advised the court that Justice Department officials had ordered that responses to the issue be transferred from the Southern District of West Virginia to the Eastern District of Kentucky.

Prosecutors filed the Justice Department order publicly in the case in May. It shows that the recusal issue was fielded by the general counsel’s office at the Executive Office for United States Attorneys and then directed to Justice’s top career official at the time, Associate Deputy Attorney General Scott Schools.

The memo specifically says that all future court pleadings in the case should include the name of the attorney general. It also says if the Kentucky team wants to use prosecutors from the West Virginia office previously handling the matter, such an arrangement would require “a detailed justification of the need” as well as approval from DOJ headquarters.

Defendants in other cases where local U.S. attorneys are recused could lodge similar objections to Whitaker's role overseeing their cases, if they believe such a challenge could yield some tangible benefit.

One high-profile defendant being prosecuted by out-of-district attorneys is former Rep. Aaron Schock (R-Ill.), who was indicted on corruption charges brought by a federal prosecutor in Springfield, Ill. That prosecutor was later ousted from the case by Justice Department officials, who reassigned the matter to prosecutors in Chicago. Schock seems unlikely to fight the arrangement since his lawyers pushed for the original prosecutor to be removed.

Another figure being prosecuted in a case in which the local U.S. attorney is recused: the president's former personal lawyer, Michael Cohen. The Trump-appointed U.S. Attorney in Manhattan, Geoffrey Berman, is recused from handling the case, which is being directed by the office's No. 2 official, Robert Khuzami.

The wording of pleadings in Cohen's case is cagey about who, if anyone, is supervising Khuzami. The usual printed line for the attorney general's name in recused cases is missing from those filings. Khuzami is also not described as acting as a special assistant to the attorney general but "under authority conferred" by the same statute that allows the attorney general to assign government prosecutors to conduct prosecutions in districts where they are do not normally practice.

Nothing has been publicly filed by prosecutors in Cohen's case since Whitaker assumed control of the Justice Department last week. However, since Cohen has negotiated a plea deal with Khuzami's team, the former Trump lawyer also appears unlikely to mount a battle to disqualify them.

Still, some lawyers are predicting a flood of motions like Haning's in every kind of case the Justice Department is involved in — virtually guaranteeing that the Supreme Court will have to step in and resolve the issue.

"There will be thousands of identical motions filed throughout the country," said Josh Blackman, a professor at South Texas College of Law. "Eventually, one judge will declare Whitaker not the acting AG. That decision will throw the entire executive branch into disarray. [The Supreme Court] will have to resolve [that] ASAP."