“THIS COULD TARNISH WHITAKER FOR LIFE”: HOW FAR WILL MATTHEW WHITAKER GO TO PROVE HIS LOYALTY?
Justice Department ethics laws are toothless, and a constitutional challenge would be a nightmare. In the meantime, sources say, the most powerful force preventing Matthew Whitaker from blowing up the Mueller probe may be Whitaker himself.
Fielding questions from a group of reporters outside the White House on Friday morning, Donald Trump found himself pretending not to know the man he had just selected to serve as acting attorney general of the United States. “Matt Whitaker—I don’t know Matt Whitaker,” he shouted, straining to be heard over the roar of a helicopter idling on the lawn nearby. “Matt Whitaker worked for Jeff Sessions, and he was always extremely highly thought of, and he still is—but I didn’t know Matt Whitaker.” This, of course, defies simple logic. As The New York Times and The Washington Post reported, following Trump’s decision to demand Sessions' resignation, Whitaker has been a repeated guest in the Oval Office, where he apparently impressed the president with his fierce skepticism of special counsel Robert Mueller and the Russia investigation. This, too, the president denied, when Abby Phillip, a correspondent for CNN, asked whether he wanted Whitaker to rein in the Mueller probe. “What a stupid question that is,” Trump shot back, dismissively. “What a stupid question. But I watch you a lot—you ask a lot of stupid questions.”
Of course, the question of Whitaker’s oversight of the special counsel’s office—and, indeed, the legality of promoting him at all—is not stupid, but rather the key issue regarding a man few people outside Washington had heard of until Wednesday. As Internet sleuths quickly discovered, Whitaker has not been coy about his contempt for Mueller’s investigation. In a July 2017 tweet, he criticized proposed legislation to protect Mueller from the White House. In August 2017, he tweeted out a link to an op-ed he had written, entitled “Mueller’s investigation of Trump is going too far.” Hours later, he shared another opinion piece urging Trump’s lawyer not to cooperate with the “Mueller lynch mob.”
Whitaker reportedly has no intention of recusing himself. And why would he? Sessions' decision to recuse himself from the Russia probe was the original sin that poisoned his relationship with Trump, leading to months of private and public verbal abuse by the president. “To put it bluntly, if Trump thought that Whitaker were to recuse, he would not have appointed him,” said Eric Columbus, who served as senior counsel to the deputy attorney general during the Obama administration. David Laufman, a former Justice Department official who oversaw the Hillary Clinton e-mail and Russia investigations, agreed. “From the facts that we know, I don’t think that there can be any question that Mr. Whitaker’s appointment was directly connected to the president’s expectations of what oversight he would exercise regarding the Mueller investigation,” he told me. “It is highly unusual for a staff person—and even a senior staff person—in the attorney general’s office to be elevated to attorney general, particularly when there is a highly experienced, institutionalist deputy attorney general already in place, who would ordinarily ascend to the attorney-general position, even in an interim role until someone is nominated.”
Mueller supporters praying for bureaucratic intercession may be disappointed. The Justice Department does have recusal guidelines, Columbus explained, but no enforcement mechanism for them. So while the deputy attorney general’s office could open an ethics inquiry into Whitaker, it’s hard to imagine they would bother. It would be an “ethics insurrection at the highest levels,” said Laufman. “You would almost have a kind of civil war break out between the leadership of the Department of Justice.” Still, there is the possibility that Whitaker could face a constitutional challenge. As legal experts George Conway and Neal Katyal argued in a New York Times op-ed Thursday, the U.S. Constitution requires that any principal officer to the president—a distinction which includes the attorney general—be confirmed by the Senate. Under the Federal Vacancies Reform Act of 1998, Trump can name any high-ranking Justice Department official to serve as acting attorney general for 210 days, as long as they have worked at the agency for 90 days—standards Whitaker meets. But as Sessions’s former chief of staff, he was never approved by the Senate. In other words, they write, “It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid . . . Constitutionally, Matthew Whitaker is a nobody.”
In a statement, D.O.J. spokesperson Sarah Isgur Flores said, “The V.R.A. was passed in 1998 and Acting Attorney General Whitaker’s appointment was made pursuant to the procedures approved by Congress.” But when I spoke to Katyal earlier this week, he was adamant. “It would be one thing if this were an emergency, or he didn’t have any Senate-confirmed people at the Justice Department,” he said. “But to handpick someone who isn’t even confirmed—and who literally has no Senate-confirmed supervision to oversee your own investigation—seems insouciant to the rule of law.”
On Friday, Senate Democrats confirmed that they are already exploring whether to use Conway and Katyal’s argument to sue the Trump administration over Whitaker’s appointment. Trump himself already seemed to have soured on Whitaker—or was at least disappointed in how he had been received, calling his longevity into question. “He was very, very highly thought of—and still is highly thought of—but this only comes up because anybody that works for me, they do a number on them,” the president lamented to the press that same morning. “And, actually, the choice was greeted with raves initially, and it still is, in some circles, on—you know, it’s a shame.”
Until Whitaker issued, dumped, or replaced, however, he apparently has most of the powers of a normal attorney general. The Trump-Russia investigation, in other words, is most certainly in trouble. Few expect Whitaker to fire Mueller outright. To begin with, he would have to prove that his dismissal was “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies,” according to the special-counsel guidelines—a high bar to clear. But, experts told me, there are other ways to handicap the probe without killing it. Whitaker could hinder the case by conceding to ongoing litigation, such as the case currently being brought by Andrew Miller, a former associate of Roger Stone, who claims he doesn’t have to testify before a grand jury because Mueller’s appointment is unconstitutional. (On Thursday, the judge, in that case, told attorneys for both sides that they should continue as if “the events of yesterday didn’t happen,” but that the judges may want them to file additional briefs responding to Whitaker’s promotion.) Whitaker could also limit the special counsel’s budgetary and personnel resources, or block subpoenas and charging decisions, among other actions. Notably, as acting attorney general, Whitaker would also determine whether or not the report Mueller is required to complete at the conclusion of his investigation would be shared with Congress or the public.
Exactly how far Whitaker will go to prove his loyalty to Trump is an open question. Sources I spoke with suggested Whitaker’s most likely course would be to deny Mueller’s requests for any major new investigatory steps, personnel, or other resources. “I think for him to derail the investigation, at this stage, would require so much overt maneuvering that it would become so obvious. I would think that for nothing else except his self-interest and professional reputation, I just think that would be a really hard thing to do,” said Asha Rangappa, a former F.B.I. counter-intelligence agent. “He does have the power to say no to investigative steps that Mueller wants to take. Mueller doesn’t have to report to him day-to-day, but if he wants to take a major investigatory step, he has to get Whitaker’s approval and, theoretically, Whitaker can say no.”
If Whitaker were to obstruct Mueller, however, he would eventually have to answer for it. According to the special-counsel guidelines, the attorney general is required to provide an explanation to the chairpersons and ranking members of the Senate and House Judiciary Committees regarding any instances in which they “concluded that a proposed action by a special counsel was so inappropriate or unwarranted under established departmental practices that it should not be pursued.” Rangappa explained that this addition to the regulations, known as the “sunlight provision,” is intended to prevent someone like Whitaker from shutting down a special-counsel investigation from “behind the scenes.” It’s a “pretty big disincentive to try to go cuckoo,” she added. “He will be exposed.”
In short, Matthew Whitaker—former college-football player, board member of a Miami-based patent “scam” company, and director of a conservative watchdog group that hounded Hillary Clinton—must soon decide how he wants to go down in history. “I think there is some risk for Whitaker down the line—if he is perceived as doing things that are thwarting the investigation—if it turns out two years down the road that Trump is not viewed kindly by history, and if a lot of bad facts emerge, then this could tarnish Whitaker for life,” Columbus said. “He is a political animal and wants to have a long future in politics and law, and he might think that doing Trump’s bidding is a good way to advance that. But there is very much the risk that it could backfire spectacularly, in a way that would harm him. If you look back to Nixon, the people who cut corners and violated the law in order to help Nixon thwart the Watergate investigation—most of them did not have happy fates after the Nixon presidency.”
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