Stooge or Savior? Whitaker’s Actions Will Define Him And His Office

Matthew_G._Whitaker_official_photoBelow 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”

  1. Turley’s explanation of how if you stand over here and look at it, it could mean this but if you stand over there and say it real fast it could mean than, illustrates how lawyers interpret the law based on whatever suits their argument.

    The fact of the matter is that Trump wants a lap dog as an Attorney General and not someone who places the office, the law, the people first. You don’t have to be a lawyer to see this. In fact, being a lawyer is the seeing through a glass darkly part.

    1. The President wants both an AG that follows the law and understands his policies. That is typical for Attorney Generals though under Obama we saw AG’s that skirted the law and acted as if all people were not equal under the law.

      1. Allan

        You could give Sarah Saunders and Kelley Ann Conway lessons in lies, BS, and double speak. The words are not ‘understands his policies’. The words are ‘loyal to his whims’. It is an established fact, witnessed by many, that Trump asks for complete loyalty. The only actions/statements that might appear to be disloyal that Trump allows are when he allows a lapdog to pry his foot out of his mouth. Then the minions have to come up with a way to explain the wing tip in the mouth.

        1. “You could give Sarah Saunders and Kelley Ann Conway lessons in lies, BS, and double speak. ”

          This type of BS comes from Issac who was just called out for a quote by Trump that was never made. Now he accuses others of lying. Again you state claims, but when asked for proof you duck out of the room.

          1. “Again you state claims, but when asked for proof you duck out of the room.”

            Said by “I live here and always have to have the last word, too” Allan.

            1. …And the statement noting that Issac has difficulty with the truth and proof is correct.

              …And yes I have the last word.

  2. Mr Turley – The headline of this article is the problem and representative of the way the press can drive divisiveness. Mr Whitaker is NEITHER a stooge nor a savior. He is a man who has worked hard to progress in his chosen field and is at the right place at the right time. Regardless of how he behaves during his tenure, he is, like all of us, trying to do our jobs in as fair and balanced way as any human can.

  3. If you want Trumps tax records then Obama should release “all” of his college records.

    1. I.Bob,

      And gw bushcheney should release “all” of the evidence that Osama plotted, planned, and managed 9/11 from his Rawalpindi hospital bed or cave hangout.

  4. People are worried about this guy, Maxine Waters is in charge of a finance committee. She probably can’t even balance a check book!

  5. Something big is going to occur today. My foresight is telling me that it is an earthquake or something. I think we will hear about it by noon. If Trump is still yakking to Macron or Putin in Europe he needs to be careful. Something is afoot. And if it is not a foot it is a yard. Not the front yard. The side yard.

  6. Until Trump is gone from office we will have to live with This Daily Beast. I am not referring to Mayor Daley. The people of America voted him into office. He won Michigan. That is the “swing” state. Hillary was too dumb to even go there to campaign. I think Monica lives up there now.

  7. “Moe! Larry! Cheese!” It is not right to demean the Three Stooges by implying that White Acre is one of them.

    1. At the time Whitaker was appointed this past Wednesday, he may not have known as much he knows now and may learn in the near future. Since there’s no way for Whitaker to suppress the summary of Mueller’s grand jury information (a.k.a. the road map), Whitaker may already be, or soon enough will have to start, rethinking his approach to supervising the special counsel’s investigation. One possible sign for that might be Trump throwing a Twitter-fit at Whitaker’s expense–just like the good old days with Sessions. Or not. There’s an appellate court ruling coming up on November 19th that could trigger that Twitter-fit from Trump. Or not. It’ll probably be more standoff till then.

      1. Now that the regs have learned how to post as the generic Anonymous, it’s become a game. Just as guessing the identity of Anonymous is a game for some of them.

  8. There’s nothing wrong with shutting down the investigation. The investigation’s a fraud. It’s just a question of timing the dance moves.

      1. David Benson is the God Emperor of Making Stuff Up and owes me twenty-four citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after twenty-three weeks, and needs to cite all his work from now on. – I was just watching a Forensic Files on the Buddhist Temple killings in west Phoenix many years ago. The Maricopa Sheriff’s department picked up 5 young Hispanic men from Tucson (eastside of Phoenix) held them without food, water and attorneys or sleep and got confessions out of 4 of them. The 5th had a water-tight alibi. Then they started looking at the forensics to back up the confessions. None of the forensics fit the crime. Nothing. Nada. Then, by accident, the Air Force had seized a .22 Marlin and turned it in when the crimes were first reported. This had been put behind a door, out of the way for 6 weeks. Now, as the case was crumbling they get around to testing it. It fits the crime. They track down the owner who says he loaned it out to two high school kids. They arrest them and they admit to the whole thing, plus another murder where the police have gotten some other innocent to confess to the murder.

        The first 4 innocents collected 2.3 million from the county. The other innocent collected 1.8 million from another county.

        You will not be surprised to learn that some deputies thought that they still could find the evidence to convict the Hispanics if they were given enough time. Give me the man and I will find you the crime.

        1. The outcome from any previous trial has no effect upon the outcome of any subsequent trial. Each event is distinct–or discreet–not to mention anecdotal.

        2. The lunkhead deputies had an actual crime to investigate. Mueller never did.

  9. So The Donald can’t be bothered to go to the graveyard ceremony but does meet with Putin. What does that suggest to you?

    1. Common sense – it is in our best interest to get along with Russia. Now if he’d just pull his head out of Bibi’s arse and stop f*cking with Iran, get out of Syria / Iraq, bring home the troops from Afghanistan, etc. Screw NATO – let the Europeans decide what they want to do to ensure their own security. Too bad about the MICs and the large network of parasites who feed off our tax dollars who would lose $$. Stop interfering and focus on issues at home.

      1. Now if he’d just pull his head out of Bibi’s arse and stop f*cking with Iran,

        No one benefits from your poisonous fantasies.

    2. David Benson is the God Emperor of Making Stuff Up and owes me twenty-four citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after twenty-three weeks, and needs to cite all his work from now on. – my understanding is that Trump’s car was held up by demonstrators. Macron did not do a good job of clearing the path for him. Of course, would he have had the guts to say what he did if Trump were there?

      My feeling is that Macron had two speeches; one, if Trump made it time, the other if Trump got held up by Macron’s rent-a-protestors.

  10. Turley wrote, “Moreover, the questions that could be presented to Whitaker are more complex than the ones discussed in his private citizen commentary. [edit] If Mueller has evidence of a meeting involving a collusion plot, it would be a very different meeting and very different question.”

    Okay. So it’s time to flush the bird out of the bush again. Turley, being Turley, surely is giving Whitaker the benefit of the doubt with respect to doing the right thing.

    Whitaker now has access to Mueller’s urgent reports which, in turn, include substantial portions of Mueller’s grand jury information. Therefore, Whitaker now has a much clearer idea as to whether Trump is innocent or guilty of conspiracy to defraud the United States. If Trump is innocent, and since Whitaker would now have a much clearer idea that Trump is innocent, then Whitaker would be expected to take action quickly to end the special counsel’s investigation. If, however, Whitaker does not take action quickly to end the special counsel’s investigation, then Whitaker might now have a much clearer idea that Trump could be guilty of conspiracy to defraud the United States, instead.

    Not being Turley, I’m not so sure as Turley seems to be that Whitaker would do the right thing when presented with whatever evidence Mueller has gathered thus far. (Surely there’s no indication that Turley is being naïve about Whitaker, or about Trump, for that matter.) There may be a few signs that Turley is having doubts or second guesses or whatever else you might want to call it.

    1. My head spins in attempting to follow that. So the story won’t make it to the pages of the Daily Tatler. Spiked.

      1. A double pendulum produces random motion that appears to be freely willed even though it has no will at all.

              1. So what makes a coin-toss random or non-deterministic . . . or unpredictable?

                (Something tells me I’m supposed to know the answer to that last question.)

              2. Oily crepe! The outcome from a previous trial has no effect upon the outcome of any subsequent trial. Each event is distinct–or discreet?

  11. If Matty gets replaced as AG by Chris Christie, Chris will not recuse himself.

    Chris Christie and Cory Booker aka “Spartacus” team up

    1. “Spartacus” hmmm. Do you think maybe he meant “This is my Spartacus League moment”.

  12. Heck of a thing to be discussing on the 100th anniversary of Polish independence.

    1. Perhaps so, but then, when Hitler was carving up Czechoslovakia, the Poles were a bit too keen on taking Silesia. They couldn’t read writing on the wall, either.

    1. They say that chaos is unpredictable. And then there’s Trump. Is Trump predictable?

      1. Random is unpredictable. Chaos is predictable if you know the equation.

        For The Donald, who knows?

            1. From the Wikipedia entry for elliptical drumhead:

              Weyl’s formula states that one can infer the area V of the drum by counting how rapidly the λn grow. We define N(R) to be the number of eigenvalues smaller than R and we get
              V = ( 2 π ) d lim R → ∞ N ( R ) R d / 2

              where d is the dimension. Weyl also conjectured that the next term in the approximation below would give the perimeter of D. In other words, if A denotes the length of the perimeter (or the surface area in higher dimension), then one should have

              N ( R ) = ( 2 π ) − d ω d V R d / 2 + 1 4 ( 2 π ) − d + 1 ω d − 1 A R ( d − 1 ) / 2 + o ( R ( d − 1 ) / 2 ) .

              For smooth boundary, this was proved by Victor Ivrii in 1980. The manifold is also not allowed to have a two parameter family of periodic geodesics such as a sphere would have.

              [end excerpt]

              This shall be the one and only citation that Don Pablo Eschoolbus ever gets.

        1. David Benson is the God Emperor of Making Stuff Up and owes me twenty-four citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after twenty-three weeks, and needs to cite all his work from now on. what is the equation for the predictability of chaos?

          P.S. – be sure to cite your work, we don’t want you Making Stuff Up.

          1. From the Wikipedia entry on Chaos Theory:

            An example of a jerk equation with nonlinearity in the magnitude of x, x is:

            d 3 x d t 3 + A d 2 x d t 2 + d x d t − | x | + 1 = 0

            1. L4Yoga/Annie/Inga enables David Benson, and the NPCs R. Lien and Marky Mark Mark – although I appreciate your enabling and covering for Benson, he needs to do his own work. Somehow he supposedly got a Ph.D. and a job at WSU. He knows how the game is played in academia. He just is losing the game currently.

  13. “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.”

    – Jeffrey Toobin

    Now you understand why President Trump is compelled to be combative.

    The end, “free stuff,” justifies the means for the liberals, progressives, socialists and democrats. They’re fixing votes in Florida right now.

    The tyranny of the RINOs and DINOs must be annihilated.

    The discipline of the “manifest tenor” of the Constitution must be re-implemented.

  14. I think that the question is mostly moot since Trump is going to replace him as soon as possible. This will keep the ball moving. Or target moving, so to speak.

    Whitaker could be reigning in the budget since Mueller has refused to reveal his budget to JW and we really do not know how much he has spent to date. He might also rescind the double secret memo the Rosenstein gave Mueller which allowed him to spread his wings.

    The other thing he can do is play hard ball with Congress regarding documents. Rosenstein did it, he can do it. If Congress wants Mueller’s report he can classify it for 50 years.

    1. Some people think that Whitaker’s main task is to say no to a subpoena for Trump’s answers to Mueller’s questions. However, the appeals courts could be tied in knots for a very long time wrangling over any subpoena for Trump’s answers to Mueller’s questions. I think both Trump and Whitaker would like to drag things out for an interminable length of time. And, in any case, everybody knows that Trump cannot ever answer Mueller’s questions truthfully and avoid articles of impeachment. That’s right, even Whitaker knows that, now.

      P. S. District Court Judge Beryl Howell will decide the fate of Mueller’s grand jury information summary (a.k.a. the road map). Not the same thing as Mueller’s report. Nice try, though. Classifying grand jury information, that is. Why not just assert State secret privilege, instead? Ha-Ha!

  15. When the actual nominee for the position is announced you might wish you had Whittaker back.

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