January 11, 2019

What’s Noticeably Missing from the Whitaker Nonrecusal Explanation



On November 7, when Jeff Sessions resigned from office, Rod Rosenstein actually became the Acting Attorney General, as a matter of law and fact.


By Martin S. Lederman, J.D.
Visiting Associate Professor of Law
Georgetown University


The Department of Justice issued a letter explaining why Matthew Whitaker has decided he won’t recuse from superintending the Russia Investigation overseen by Special Counsel Robert Mueller, notwithstanding the many inaccurate and inflammatory public statements he made about the Mueller investigation in 2017, before he was hired to work in the Trump Administration.

The regulatory provisions at issue are 5 C.F.R. § 2635.502(a)(2) and (d).  The former provides that an employee concerned that circumstances other than those specified in the regulation “would raise a question regarding his impartiality” should use the “process” described in subsection (d) “to determine whether he should or should not participate in a particular matter.”  DOJ doesn’t dispute that this is such a case.

Subsection (d), in turn, provides that “[w]here an employee’s participation in a particular matter involving specific parties would not violate 18 U.S.C. 208(a), but would raise a question in the mind of a reasonable person about his impartiality, the agency designee may authorize the employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations.”  The regulation goes on to provide that several specific “factors . . . may be taken into consideration,” including:

(1) The nature of the relationship involved;

(2) The effect that resolution of the matter would have upon the financial interests of the person involved in the relationship;

(3) The nature and importance of the employee’s role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter;

(4) The sensitivity of the matter;

(5) The difficulty of reassigning the matter to another employee; and

(6) Adjustments that may be made in the employee’s duties that would reduce or eliminate the likelihood that a reasonable person would question the employee’s impartiality.

Whitaker consulted with an unspecified number of “senior” DOJ ethics officials.  Those officials advised him (apparently without dissent) that Whitaker should recuse himself from the Russia investigation because, in their view, “a reasonable person with knowledge of the relevant facts likely would question [Whitaker’s] impartiality.”

Whitaker did not take their advice.  Why not?  As far as we can tell from the letter’s explanation, Whitaker concluded that he would, in fact, be impartial. The letter also implies, without saying so directly, a judgment by Whitaker that a reasonable person shouldn’t question his impartiality, mostly because of the all the positive and appropriate statements he’s made about Mueller since he stopped making the inappropriate comments 16 months ago.

I think most observers will agree with the senior DOJ ethics officials rather than Whitaker on whether a reasonable, informed person would question his impartiality.

But let’s give him the benefit of the doubt on that: Let’s assume for the sake of argument, that is, that Whitaker is genuinely committed to being impartial and that, although there’s certainly “concern that a reasonable person may question the integrity of the agency’s programs and operations,” it’s nonetheless fair for Whitaker to conclude that a reasonable observer would (or at least should) credit his commitment to impartiality.

OK, now let’s proceed with the remainder of the § 2635.502(d) assessment.

Uh, wait a sec.  It’s not there.  The letter simply stops at that point, as if that were enough.

Notice what’s conspicuously missing:  There is no mention of what the Government’s “interest” might be “in [Whitaker’s] participation” in the Russia investigation, let alone any discussion of why that interest might possibly “outweigh[] the concern that a reasonable person may question the integrity of the agency’s programs and operations.”  And, in particular, the letter does not suggest that Whitaker so much as considered “the … importance of [his own] role in the matter” or “[t]he difficulty of reassigning the matter to another employee.”

That is to say:  The letter offers absolutely no reason why it would be of any value to the Department or the administration of Justice–indeed, why it would be of any value to anyone or anything at all, save the personal interests of Donald Trump–for Whitaker to replace Deputy Attorney General Rod Rosenstein as the superintendent of the Russia investigation.*

I hardly need to canvass the reasons why Rosenstein is obviously the more appropriate and effective official for the job.  He’s much more experienced and seasoned than Whitaker, especially in matters of complex criminal and counterintelligence investigations; he’s been supervising Mueller for almost two years now and knows everything there is to know about the investigation; the working relationship between Mueller and Rosenstein has, by all reports, been excellent; Rosenstein hasn’t made disparaging and legally inaccurate remarks about the investigation the way Whitaker has . . . etc., etc.  The list could expand indefinitely.

Oh, and there’s this, too:  Congress actually provided, by law, that in the case of a vacancy in the Office of Attorney General, the Deputy AG would perform the AG’s functions–automatically.  And the Senate thus confirmed Rod Rosenstein to be DAG with the understanding and expectation that he’d perform those AG functions when the office is vacant or the AG is unable to do so (including because of recusal).

Indeed, on November 7, when Jeff Sessions resigned from office, Rod Rosenstein actually became the Acting Attorney General, as a matter of law and fact.  Donald Trump did not purport to displace him with Matthew Whitaker until the next day–and then he did so without providing any legitimate reason (because there wasn’t any) why he should deviate from the statutory and historical norm by displacing the statutorily designated acting officer.

That creates two further clouds that are reason enough for Whitaker himself to choose not to displace Rosenstein on the Russia investigation:  (i) that a reasonable observer would obviously conclude that Trump deviated wildly from statutory and historical norms in order to insert in the AG’s Office someone he expected would be more loyal to him than Rod Rosenstein; and (ii) that the legality of Whitaker’s designation as “Acting” AG is now subject to serious legal challenge.

For all these many reasons, there’d be no “difficulty of reassigning the matter to another employee” at all–indeed, no reassignment would be necessary because Rosenstein is already doing the job.  And “the … importance of [Whitaker’s] role in the matter” is, of course, nonexistent.

From all that appears, Whitaker did not consider these things at all.  And, more importantly, he appears not to have ever made an assessment, as the regulation requires, whether any Government interest in Whitaker’s participation in the Russia investigation “outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations.”  If he had done so, there can hardly be any doubt what the proper answer would be.

* The letter does mention Whitaker’s desire not to create a precedent that recusal is required in a “close call situation.”  That doesn’t make much sense when you think about:  Of course recusal isn’t required in every close case–indeed, the whole point of something being a “close call situation” is that sometimes the answer will fall on one side of the line, sometimes on the other.  In any event, if Whitaker were truly concerned about creating a “precedent” about whether recusal is required in all close cases, he could simply announce that although recusal isn’t required in every close case, he’s recusing here because there’s no value in having Whitaker supersede Rosenstein in the Russia investigation.


Originally published by the Just Security, 12.21.2018, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.

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