Below is my column in The Hill newspaper on the selection of Matthew Whitaker as Acting Attorney General. While I believe that Whitaker meets the criteria under the Federal Vacancies Reform Act, I have great reservations about that Act’s constitutionality in allowing unconfirmed individuals to serve in this position, as discussed in my prior column. However, I do not believe that prior commentary as an attorney requires recusal under Justice Department rules. Whitaker is about to establish a legacy as either a political stooge or principled lawyer.
Here is the column:
President Trump’s appointment of Justice Department Chief of Staff Matthew Whitaker as the acting attorney general is described by Democratic senators and other critics as a “constitutional crisis” and clear effort to obstruct special counsel Robert Mueller’s investigation. Some immediately called for Whitaker to recuse himself from overseeing Mueller. Others, such as CNN legal analyst Jeffrey Toobin, dismissed any notion that Whitaker might recuse himself because he is nothing but a stooge: “The whole point of appointing a stooge is to make sure he continues to act like a stooge. And that is undoubtedly — undoubtedly why he’s there.”
There is another option, of course, that Whitaker may act as an ethical lawyer and allow the investigation to run its course. For those of us who originally called upon now departed Attorney General Jeff Sessions to recuse himself from overseeing Mueller, Trump’s often stated desire to fire Sessions was always unsettling. Ultimately, Sessions lost his post for taking the only ethical step of recusal from the investigation as recommended by career ethics experts at the Justice Department.
Under normal circumstances, the obvious choice to replace him might have been Deputy Attorney General Rod Rosenstein, who has effectively run the Justice Department for two years. Yet, Rosenstein has his own serious conflict of interest, as he could be a key witness in the Mueller matter, and has baffled many by his own refusal to recuse himself. Selecting Rosenstein would have undermined White House arguments that Mueller’s investigation has ignored such conflicts while pursuing Trump’s associates for every possible charge, no matter how flimsy.
Under the Federal Vacancies Reform Act, a president can appoint an acting official when a top official “dies, resigns, or is otherwise unable to perform the functions and duties” of the position. By resigning rather than demanding to be fired, Sessions removed one possible barrier to Trump’s appointment of Whitaker, although some have argued that Sessions was fired because he was forced to resign. However, Trump could only appoint someone who was previously confirmed by the Senate or, alternatively, the departing official’s “first assistant” or someone sufficiently senior within the agency. Whitaker meets the latter seniority standard.
Democratic senators like Chris Coons insist that Whitaker’s appointment crosses a clear “red line” that requires recusal. The reason given is that Whitaker, before joining the Justice Department, offered commentary as an analyst on CNN and as a columnist in The Hill and elsewhere criticizing the Mueller investigation, defending Donald Trump Jr.’s meeting with Russians at Trump Tower during the 2016 campaign, and even suggesting ways that an acting attorney general could shut down Mueller’s work.
These expressions of shock by Democrats in Congress seems a tad forced, however, given their silence over alleged conflicts of Mueller and Rosenstein. There is a clear difference between a private sector lawyer commenting on national affairs on a cable news show, and a government attorney acting in an official capacity. If FBI agents and prosecutors ask for indictments or submit a report detailing criminal acts, Whitaker, in his acting role at the Justice Department, will then have an institutional interest that was not present when he was a talking head on CNN.
Moreover, the questions that could be presented to Whitaker are more complex than the ones discussed in his private citizen commentary. Much is made of his reported statement that Trump Jr.’s decision to meet with the Russians was entirely lawful since “you would always take the meeting.” The most likely criminal exposure of Trump Jr. would be over false statements about not attending the meeting. Whitaker addressed a meeting to receive evidence of possible criminal conduct by a political opponent. If Mueller has evidence of a meeting involving a collusion plot, it would be a very different meeting and very different question.
Whittaker also publicly criticized the expanding scope of the investigation into financial matters removed from the election, an objection shared by many. Yet, if Whitaker were to limit the investigation to exclude such prosecutions, Mueller would insist on referring such matters to a United States Attorney’s office if he believed criminal conduct was established, just as he did in referring the investigation into Michael Cohen.
Finally, Whitaker did previously talk about how an acting attorney general could shut down the investigation. He was responding to hypothetical questions about possible scenarios, including the selection of an attorney general who cuts Mueller’s budget “so low that his investigation grinds to almost a halt.” In reality, it would be difficult to bring the investigation to an immediate halt, given the budget process, and Mueller appears to be wrapping it up anyway. Such a move would trigger an immediate investigation by Congress. It would, in short, be a baffling decision.
If anything, Whitaker’s prior statement puts greater pressure on him to avoid such an allegation of being a “stooge” on a mission. It is hard to judge the intent of Trump, given his hyperbolic and often inappropriate statements directed at Mueller and his investigation. However, putting such rhetoric aside, Trump has not carried out his threats. He has not, in fact, fired Mueller. In his White House press conference this week, Trump indicated that he would do the right thing in allowing Mueller to continue, even if he gave the wrong reason: “I could fire everybody right now, but I don’t want to stop it because politically I don’t like stopping it.”
Does all of this mean that the appointment of Whitaker is not part of some grand conspiracy to shutdown the investigation? Of course not . . . any more than it proves an entirely innocent purpose. The only point is that assuming Whitaker is a stooge or saboteur ignores the reality that scuttling the investigation would be the stupidest option available to Trump. It would neither end the investigation by the House nor erase the evidence held by the special counsel’s staff. If obstruction was not already established by Mueller, doing this would fulfill the very narrative Mueller sought for the last two years. Whitaker may have a short time in this position but his actions will define him for years to come. We might want to let him act first before we declare him to be stooge or savior.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
86 thoughts on “Stooge or Savior? Whitaker’s Actions Will Define Him And His Office”
“…to seek just punishment for those guilty of unlawful behavior…”
Office of the Attorney General
Department of Justice
“To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”
Peter Strzok, “We will stop him.”
Lisa Page to Peter Strzok, “POTUS wants to know everything we’re doing.”
Lisa Page to Congress, “The texts mean what the texts say.”
Co-conspirators in the Obama coup d’etat in America:
Sessions, Rosenstein, Mueller/Team, Comey, McCabe, Strozk, Page, Kadzic, Yates, Baker, Bruce Ohr, Nellie Ohr, Priestap, Kortan,
Campbell, Steele, Simpson, Joseph Mifsud, Stefan “The Walrus” Halper, Kerry, Hillary, Huma, Brennan, Clapper, Farkas, Power, Lynch,
Rice, Jarrett, Obama et al.
“If not now, when?
If not them, whom?”
“These expressions of shock by Democrats in Congress seems a tad forced….”
understatement of the century
Congress, along with the News Media, have little credibility in the eyes of Americans because they are histrionic. Complete D grade theatrics
DOJ – Appointment of Special Counsel
Order No. 3915 – 2017
“…to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election…”
Acting Attorney General
Obama Coup D’etat in America
How long will Obergruppenfuhrer Mueller be investigating President Trump for the counter-intelligence, not domestic criminal, acts of a foreign nation as nonexistent “Russian collusion?” Isn’t he near retirement age?
– The Spanish Inquisition was how long?
Roughly 700 years. The official start is usually given as 1231 A.D., when the pope appoints the first “inquisitors of heretical depravity.” The Spanish Inquisition, which begins under Ferdinand and Isabella, doesn’t end until the 19th century — the last execution was in 1826.
– Was torture used?
Torture was an integral part of the inquisitorial process, mainly to extract confessions — just as it was part of the systems used by secular courts of the time.
– Huff Post
Will the DOJ/FBI, “deep state” Obama Coup D’etat in America be allowed to conduct its “Russian Collusion Inquisition” and torture duly elected President Donald J. Trump for 700 years?
“Khashoggi reportedly told his killers ‘I’m suffocating, take this bag off my head’ right before he died”
Nov 12th 2018 9:45AM
“Riyadh has been trying to distance its leadership, particularly Crown Prince Mohammed bin Salman, from the killing. In an op-ed for The Washington Post earlier this month, Erdogan wrote: “We know that the order to kill Khashoggi came from the highest levels of the Saudi government.””
TURLEY COLLEGUE AT GEORGE WASHINGTON UNIVERSITY..
ARGUES WHITAKER CAN’T SUPERVISE MUELLER INVESTIGATION
It simply cannot be that the president can name his own temporary attorney general to supervise an investigation in which he and his family have a direct, concrete interest. The Constitution itself underscores this — even assuming Trump’s defenders are right that under the Appointments Clause, an acting attorney general doesn’t always need to be Senate-confirmed. Ordinarily, “Principal Officers,” which Cabinet secretaries undoubtedly are, must have Senate confirmation under Article II of our Constitution. The most eloquent defenders of Trump’s action say that Whitaker is serving in a temporary capacity, as an inferior officer, and therefore he can serve without confirmation. But they cite precedents that do not apply, because they concern emergency situations in which no one else has been confirmed by the Senate in the line of succession. In this case, the Senate has confirmed two officials who could continue to oversee Mueller: Deputy Attorney General Rod J. Rosenstein, who has been supervising the case ever since former attorney general Jeff Sessions recused himself, and Solicitor General Noel Francisco. Notably, Congress’s succession statute for the Justice Department lists those people as next in line, not a handpicked mere staff member from the bowels of the department.
AUTHOR NEAL KATYAL: is a Professor of National Security Law at George Washington University.
Edited from: “The Rules Are Clear: Whitaker Can’t Supervise Mueller’s Investigation”
Today’s WASHINGTON POST
LINK TO FULL OPINION ABOVE
I think this is the moderator’s third post on a matter which once upon a time would have merited one sentence in a news article. Obsess much?
The interesting question is who the permanent replacement will be and the steps which will be taken in putting an end to Rod Rosenstein’s career at the Department of Justice and in publishing documents which reveal in bald detail the who’s who and what’s what of these scams.
It sounds like the perfect start to your own blog, Wretched. Go for it.
…asks the wretched pot, WSF.
IF WHITAKER IS ‘NOT’ A STOOGE..
WHY HAS TRUMP DENIED EVER MEETING HIM?
One day after appointing Whitaker to ‘Acting Attorney General’, Trump claimed, on camera, that he had ‘never met’ Whitaker. Then a flood of reports surfaced that Whitaker had been to the White House several times in the company of Jeff Sessions. A video tape was located featuring Trump referring to Whitaker by name and confirming they had met.
Therefore one has to seriously ask ‘why’ Trump denied meeting Whitaker if the latter is ‘not’ a ‘stooge’? Even Whitaker himself should be unsettled by that. If they have met several times, ‘why’ the denial?
Therefore one has to seriously ask ‘why’ Trump denied meeting Whitaker if the latter is ‘not’ a ‘stooge’?
A simple explanation is that the president is a busy man and doesn’t recall by name all the people with whom he meets. The federal executive has about 4,000 discretionary appointments and Whitaker had a staff position, not a line position.
Tabby, they’ve met at the White House several times. And if Trump’s ‘not sure’ he met Whitaker, then he should check with aides before denying to the cameras.
Trump is a stable genius and he only hires the best people, the best.
The best of the best.
Based on your record Peter of saying things that are out of context or entirely untrue it falls to you to prove your charge.
If Trump did meet Whitaker maybe he didn’t remember. In that case maybe Whitaker should be insulted, but then again a lot of people forget who they casually meet. One doesn’t have to focus on why this is important because it isn’t, but that is what you seem to focus on.
Let’s define some terms the context of Whitaker:
Stooge – one who assumes management role and seeks to control actions of subordinates in terms of resources and scope of investigation so as to limit subordinate from investigating previously investigated or pointless charges and/or engaging in roving commissions apart from the main investigation into Russian collusion.
Ethical Lawyer – one who adopts the party line of the President’s opposition that is hellbent to impeach him with evidence or not and permitting the investigation to go on Interminably political reasons.
“Under normal circumstances, the obvious choice to replace him might have been Deputy Attorney General Rod Rosenstein, who has effectively run the Justice Department for two years.”
Insert joke here!
” While I believe that Whitaker meets the criteria under the Federal Vacancies Reform Act, I have great reservations about that Act’s constitutionality in allowing unconfirmed individuals to serve in this position, as discussed in my prior column.”
Congress passed the law and the President is following the law. It is not a “constitutiona crisis” as stated by the left rather a question as to whether the law is constitutional or not. Neither Whitiker or the President has violated the law. I think there is a more important case against Rod Rosenstein due to his lack of recusal, but the left conveniently closes its eyes while the media doesn’t do its job.
Good post Allan.
Stooge or Savior?
Turley acknowledges Trump has the constitution on his side. So what remains, the recusal argument? He can’t go there because he would have more reasons for Rosenstein to recuse himself than Whittaker. No, Turley posts these circle jerk articles and then concludes right where he should have begun:
Whitaker may have a short time in this position but his actions will define him for years to come. We might want to let him act first before we declare him to be stooge or savior.
28 CFR 45.2 requires ethics exemption or recusal if a person has a political relationship with the subject of an investigation.
[N]o employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:
(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or
Defining “political relationship” to include service as a principal advisor to a candidate.
Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof;
Matt Whitaker served a campaign chairmen for Sam Clovis’ 2014 campaign for State Treasurer in Iowa. Sam Clovis is a subject of the special counsel’s investigation as well as a witness who has testified before Mueller’s grand jury. Don McGahn also interviewed Whitaker, at Trump’s request, to join Trump’s legal defense team in July of 2017, after Trump saw Whitaker attacking the Mueller investigation on CNN.
Well if Mueller doesn’t follow ethics why should his boss or his undelings for the matter?
If Turley agrees to throw out the ethical rule book, then I’ll stop harping on Whitaker’s conflicts of interest. But if Turley keeps fishing the ethical rule book out of the circular file so he can keep throwing it at Rosenstein and Mueller, then I’ll keep harping on Whitaker’s conflicts of interest. No unilateral standoffs. Bilateral standoffs only.
If reasonable rules of ethics had been followed by Mueller and Rosenstein, Sessions would still be Attorney General.
so tell us how did you become an expert on the ethics rulebook? what does your cv say? im just curious.
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