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.