The conclusion to yet another arm-chair legal analysis as to why Matthew Whittaker must be removed as acting AG (with heavy reliance on the dicta of Justice Thomas):
It is not unusual for litigants to challenge the authority of a federal agency or official to punish them. In June, the Supreme Court ruled that an administrative law judge was not properly appointed to the Securities and Exchange Commission; four years ago, it held that a member of the National Labor Relations Board was unlawfully appointed. As Thomas wrote in 2017, the judiciary cannot ignore the law’s “check on executive power for the sake of administrative convenience or efficiency.” If Whitaker can’t legally serve as the chief law enforcement officer of the United States government, it’s the duty of the courts to toss him out.
In other news, Chris Christie is emerging as the likely nominee to be the next AG (wotta burn, Lindsay, huh? Maybe more interesting are the two who've already told the White House "No, thanks," nameless here forevermore). Rick Scott is going down in flames in Florida, which means that Senate seat will probably go to the Democratic incumbent (it's either cute of disturbing that Reuters thinks because Trump said it in a tweet, that lawyers are going to Florida to keep things straight. Aren't there already U.S. attorneys in Florida? And since when does a Trump tweet become performative language?). Sinema seems to be winning in Arizona, so another Democratic Senator may be seated in January. That won't derail the nominating process, but it won't speed it up, either.
So you file suit now to remove Whittaker. With appeals by the DOJ, how long will that take? Long enough to remove him before the new AG is confirmed?
Sure; that'll happen.
Even Senate Democrats are mooting the idea of filing suit, if they can first find somebody with clear standing to sue. Event may already be moving too rapidly for that, however (after all, it's Friday. Sessions resigned on Wednesday. Can't let the grass grow under your feet....):
Except, as tout le internet already knows:
Trump said 4 times today "I don't know Matt Whitaker." Here is he is on Fox News last month saying, "I can tell you Matt Whitaker's a great guy. I mean, I know Matt Whitaker."— Justin Fishel (@JustinFishelABC) November 9, 2018
Interview: Donald Trump Calls in to Fox and Friends - October 11 https://t.co/WNiTu621NY via @YouTube
Several senior officials told CNN they were surprised by the criticism, and believe it could potentially jeopardize Whitaker's chances of remaining in the post if it continues to dominate headlines.
Whitaker's standing ultimately depends on the President. But continued negative coverage will get Trump's attention.