Politics & Policy

Sessions Out, Whitaker In — For Now, and Maybe for Good

Attorney General Jeff Sessions with Deputy Attorney General Rod Rosenstein (at right), June 2017. (Yuri Gripas/Reuters)
Matthew Whitaker is well credentialed and an excellent choice to assume the duties of attorney general.

Is Matthew Whitaker a placeholder who can manage Special Counsel Robert Mueller until President Trump decides on a permanent successor for ousted Attorney General Jeff Sessions? It’s possible, but it’s also conceivable that Mr. Whitaker’s temporary gig as acting attorney general is an audition for the job. Feeling like he’s been burned once, and then saddled for the better part of two years with an AG he could no longer abide, the president may want a trial run before he settles on a “permanent” replacement. (I use scare-quotes because what, these days, is permanent?)

To repeat what I had occasion to say about a week ago, I am a Sessions fan, and I think he got a raw deal. That said, it was time for Trump and Sessions to part ways. The former AG should be proud that he performed admirably and was a very effective proponent of the president’s agenda. I continue to believe his recusal from the so-called Russia investigation was premature and overbroad, but there is no doubt that a recusal of some extent would have been necessary. The president is kidding himself if he thinks otherwise. And it was not Sessions but Deputy Attorney General Rod Rosenstein — a Trump appointee — who decided to name a special counsel.

That is all water under the bridge at this point.

Matthew Whitaker joined the Trump Justice Department as Sessions’s chief of staff in October 2017. The date is relevant. The president has named him as acting attorney general under the Vacancies Reform Act of 1998 (the relevant provisions are codified at Sections 3345 and 3346 of Title 5, U.S. Code). There has been some commentary suggesting that because Whitaker was in a job (chief of staff) that did not require Senate confirmation, he could not become the “acting officer” in a position (AG) that calls for Senate confirmation. Not so. The Vacancies Act enables the president to name an acting officer, who may serve as such for 210 days, as long as the person named has been working at the agency or department for at least 90 days in a fairly high-ranking position. Whitaker qualifies.

Whitaker has excellent credentials and influential backers. He served as Attorney General John Ashcroft’s chief of staff until 2004, when President Bush appointed him United States attorney for the southern district of Iowa. To get the latter post, Whitaker certainly had to have the approval of Senator Chuck Grassley (R., Iowa), who even then was a senior member of the Judiciary Committee (which he now chairs). According to a New York Times profile of Whitaker, he was recommended to President Trump by the estimable Leonard Leo, the Federalist Society chief who has been critical to the president’s judicial appointments — perhaps the administration’s signal achievement. Whitaker is said to have very good chemistry with the president, and to have been an effective liaison between the Justice Department and the White House.

I must say I am amused by the media pearl-clutching over the fact that Whitaker will presumably be assuming supervisory responsibility over the Mueller investigation.

Since Mueller came into the picture, that responsibility has been exercised, quite passively, by Deputy Attorney General Rosenstein. He appointed Mueller on May 17, 2017, to take the reins of the Russia investigation that had been ongoing for several months. As I have detailed, Rosenstein has been laboring under blatant conflicts of interest.

To summarize, the special counsel has been scrutinizing the president’s firing of former FBI director James Comey in the obstruction aspect of his investigation. Rosenstein was a prominent participant in the firing and is thus an important witness. Rosenstein, moreover, signed off on the last FISA warrant application for surveillance against former Trump-campaign adviser Carter Page, which is under investigation by Congress and DOJ’s inspector general. Rosenstein, using the Mueller investigation as part of his rationale, has stonewalled Congress’s demands for relevant information. The surveillance of Page is plainly germane to Mueller’s Russia investigation. Since Rosenstein’s actions are under scrutiny — and given that this is in addition to the just-described, patent conflict posed by his involvement in Comey’s firing — one would think Rosenstein would want to step aside rather than have his ethical sensibility questioned.

While the press remains remarkably indifferent to Rosenstein’s conflicts, it is all over what are said to be Whitaker’s — stemming from an opinion essay he wrote for CNN a couple of months before joining the Trump administration. It is being alleged that Whitaker contended that any probe of the president’s finances would be beyond the scope of Mueller’s jurisdiction; he is further accused of using President Trump’s derogatory phrase — “witch hunt” — to belittle Mueller’s investigation. That is an overwrought distortion of what Whitaker wrote.

The New York Times had asked President Trump if Mueller would be acting outside his mandate if he began investigating the Trump family finances. The president responded, “I think that’s a violation. Look, this is about Russia.” The burden of Whitaker’s op-ed was to defend Trump’s statement, which — while curt and ambiguous — did not claim that Mueller would be in the wrong if his inquiry into Trump’s finances had some good-faith connection to Russia.

Whatever Trump may have meant, Whitaker was emphatic about what he found objectionable: the notion of an investigation unconnected to Russia — i.e., a fishing expedition into Trump’s finances without any articulable nexus to what Mueller was appointed to investigate, namely, Russia’s interference in the 2016 election.

In part, Whitaker was countering the contentions posited by, well, your humble correspondent. I’ve maintained that Rosenstein’s order appointing Mueller set no real limits on the investigation. Having now reviewed Whitaker’s interpretation, I still respectfully disagree; but he nevertheless presented a forceful legal argument, based on a close reading of Rosenstein’s order, for the proposition that there are limits on the special counsel.

Whitaker, furthermore, did not say Mueller could not properly review Trump’s finances under any circumstances. He said that, to do so, Mueller would have to “return to Rod Rosenstein for additional authority.” That would, indeed, be the proper procedure (if we assume, as Whitaker does, that the order defines the parameters of Mueller’s jurisdiction).

Finally, Whitaker never said that Mueller’s investigation was a “witch hunt.” He said the investigation could become a witch hunt if Mueller were to investigate Trump’s finances in the absence of any connection to Russia and any formal broadening of the scope of his appointment by Rosenstein. That is manifestly true, a truth underscored by Rosenstein’s public insistence that Mueller is not, to borrow the deputy AG’s phrase, an “unguided missile.”

Concededly, I have raised concerns in the past about mixing punditry with prosecution; I’ve observed, for example, that I would be a poor choice to suggest as a putatively independent counsel in an investigation on which I had commented extensively, and about which I had expressed opinions, as a journalist. It is not that I doubt my capacity to be fair; it is that the investigation would lack the appearance of fairness and objectivity, no matter how fair I was. In the criminal-justice system, the appearance of propriety is nearly as important as the reality.

All that said, Whitaker has not commented extensively on the Russia investigation and the comments made in his op-ed should be uncontroversial. They do not question the worthiness of investigating Russia’s interference in the election, and they do not denigrate the Mueller investigation — they merely maintain that the investigation should stay within the bounds that Rosenstein has sought to assure the public it has respected.

Matthew Whitaker is well credentialed and appears to be an excellent choice to assume the duties of attorney general, at least temporarily (and perhaps permanently, though under the Vacancy Act, he could not be nominated to be AG while serving as acting AG). The removal of Rod Rosenstein as Mueller’s overseer is inevitable and overdue — which is not a condemnation of him, but a recognition that he should not be supervising an investigation in which his own actions are implicated. Special Counsel Mueller’s investigation appears to be at a ripe stage, and if Acting Attorney General Whitaker helps steer it to a prompt conclusion, that is all to the good.

Whitaker is being prejudged in some quarters as a Trump “loyalist.” That pejorative label is more a function of what the president has reportedly said that he’d like to have in an attorney general (and in other executive offices serving the president). It is not a function of anything Whitaker has actually done. Let’s see how he performs over the next few months. I’m betting he’ll do a fine job.