November 10, 2018

Matthew Whitaker’s Appointment Threatens the Rule of Law


Matthew Whitaker, the new acting attorney general, arrived in classic Trumpian fashion: via tweet, unvetted for his current post, and awash in a brew of extreme opinions, conflicts of interest, corrupt intent, and disregard for the rule of law. (Photo: Chip Somodevilla/Getty Images)


Trump’s new acting attorney general is an outspoken critic of the Russia investigation.


By Victoria Bassetti, J.D. / 11.09.2018


Matthew Whitaker, the new acting attorney general, arrived in classic Trumpian fashion: via tweet, unvetted for his current post, and awash in a brew of extreme opinions, conflicts of interest, corrupt intent, and disregard for the rule of law. Particularly troubling are his past comments on Special Counsel Robert Muller’s investigation, since Whitaker is taking over the department at a pivotal point in the probe.

For the last year, Whitaker had been chief of staff to Jeff Sessions, the attorney general forced out this week. Before that he was in private practice in Des Moines, Iowa, after serving as U.S. Attorney for the Southern District of Iowa for five years, ending in 2009. But it’s his loyalty to the president that really seems to recommend him for the job. Whitaker has signaled in past writings and interviews that he would satisfy the president’s desire to tame Mueller ‘s ongoing investigation into Russian interference in the 2016 presidential election, and many possible related misdeeds by the Trump family.

Before becoming Sessions’ chief of staff, Whitaker made no secret of his dislike of the Mueller investigation. In the wake of the Comey firing, he sneered at demands for an independent investigation as “hollow calls…[and] craven attempts to score cheap political points and serve the public in no measurable way.” After Mueller’s appointment, he warned that the inquiry was verging on becoming a “mere witch hunt.”

And there’s more. Whitaker argued that a Mueller investigation into the president’s finances would be a “red line.” He referred to Mueller’s team as a “lynch mob” and decried the raid on former Trump campaign chairman Paul Manafort’s house as intimidation. He is a close political ally of Sam Clovis, the former national co-chairman of the Trump campaign who has spent 19 hours testifying or interviewing with the Mueller team. He has spoken in support of the meeting Donald Trump Jr. took with a bevy of Russians to learn negative information about Hillary Clinton during the presidential campaign.

It’s no surprise, then, that the first thing we learned about Whitaker’s interim leadership of the Department of Justice was that he would be taking over supervision of the Mueller investigation from Deputy Attorney General Rod Rosenstein, who had overseen the probe after Sessions recused himself from that role. Trump has effectively pulled off the neat trick of appointing his own prosecutor. For the American public to have confidence in any outcome of the investigation, the president cannot have influence — or appear to have influence — over the process.

Best of all, Trump avoided the Senate’s advise and consent role by using a statute that allows him to hand-pick an acting successor to Sessions for at least 210 days. No vetting necessary for the job other than the president’s own inclinations and whims.

The timing is more than a little suspicious. Trump announced Sessions’ ouster a few hours after Politico reported that Trump, Jr., thinks he could be indicted. As of Wednesday, Mueller, who has spent the last 60 days avoiding any major actions that could affect elections, was free to issue indictments. But now he will have to run any major decisions by Whitaker, including all indictments or a report of his findings, now that he is clear of the customary DOJ pre-election quiet time. CNN has reported that the team had begun drafting its final report.

Sessions reportedly asked to serve out the week but was told to clear out immediately. Now, Whitaker and the president have the maximum amount of time between taking control of the Mueller investigation and when the first set of Democratic-controlled House subpoenas might fly on January 3.

Aside from the essential questions about the threat Whitaker poses to Muller’s investigation, it’s also debatable whether Trump’s appointment of Whitaker is even legal. It is certainly not standard procedure to precipitously elevate someone to be the nation’s top law enforcement officer when they haven’t been confirmed for that position by the Senate.

In the event the Attorney General resigns or is unable to perform his or her job, the Department of Justice’s line of succession is fixed by a specific statute and codified in a memorandum order. It involves putting people who have gone through the Senate vetting and confirmation process for the role in charge of the nation’s most powerful law enforcement apparatus. Trump made an end run of that specific law by using a generic HR statute, the Federal Vacancies Reform Act. But some people questionwhether he’s allowed to use that statue and ignore the more precise law.

Even more, while Sessions and the White House may have framed his departure as a resignation, there is no question he was fired. In those circumstances, the Vacancies Reform Act may not be usable by the president. This precise issue was the subject of litigation earlier this year after Trump fired Veterans Administration Secretary David Shulkin and appointed Robert Wilkie to serve in an acting capacity. The case never made it to judgment because the Senate cured the problem by confirming Wilkie. But now we have the Whitaker appointment to test the question. Only this time, rather than testing the acting VA secretary’s authority regarding veterans’ benefits, we’ll get to see challenges to the entire law enforcement apparatus of the nation including the validity of surveillance warrants and capital case decisions.

After more than a year of sniping from the sidelines about the Mueller probe and Sessions, Trump has finally acted. His intentions could not be clearer. The president is using his power to fire and hire for personal advantage and to place himself above the law. The threat to the rule of law could not be more imminent.


Originally published by the Brennan Center for Justice under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.

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