Ethics official: Whitaker should recuse himself from Mueller probe

WASHINGTON — A senior Justice Department ethics official concluded that acting attorney general Matthew Whitaker should recuse himself from overseeing special counsel Robert Mueller’s probe examining President

Donald

Trump, but advisers to Whitaker recommended the opposite and he has no plans to step aside, according to people familiar with the matter.

The latest account of what happened underscores the high stakes and deep distrust — within Congress and in some corners of the Justice Department — surrounding Whitaker’s appointment to become the nation’s top law enforcement official until the Senate votes on the nomination of William Barr to take the job. Earlier in the day, a different official, who spoke on the condition of anonymity, said ethics officials had said Whitaker need not step aside, only to walk back that account hours later.

Within days of the president’s announcement in early November that he had put Whitaker in the job on a temporary basis, Whitaker tapped a veteran U.S. attorney to become part of a four-person team of advisers on the question of whether he should recuse from Mueller’s investigation because of his past writings critical of that probe, and because of his friendship with one of its witnesses, according to a senior Justice Department official.

Whitaker never asked Justice Department ethics officials for a recommendation, nor did he receive a formal recommendation, this official said.

However, after Whitaker met repeatedly with ethics officials to discuss the facts and the issues under consideration, a senior ethics official told the group of advisers on Tuesday that it was a “close call,” but Whitaker should recuse to avoid the appearance of a conflict of interest, the official said. Whitaker was not present at that meeting, the official said.

Those four advisers, however, disagreed with the ethics determination and recommended to Whitaker the next day not to recuse, saying there was no precedent for doing so, and doing so now could create a bad precedent for future attorneys general.

However, when Eric Holder became the attorney general in 2009, he decided to recuse himself from overseeing the investigation of former presidential candidate John Edwards.

Holder’s reasoning was that he had been part of Barack Obama’s vice-presidential search committee that considered Edwards. In that case, Holder did not consult Justice Department ethics officials before deciding to recuse.

The senior official who described the Whitaker discussions refused to identify the particular Justice Department employees involved.

Typically, ethics officials make recommendations that Justice Department employees are expected to follow, but the final decision on whether to recuse over an appearance of a conflict of interest was always Whitaker’s to make, according to past and current officials.

Whitaker has decided not to recuse from the Mueller case, and a letter to that effect is expected to be sent to Senate Minority Leader Charles Schumer, D-N.Y., possibly later Thursday.

Whitaker has not received briefings on the Mueller investigation, but he may at some point, the senior Justice Department official said.

As the agency’s top official, Whitaker had been supervising Mueller and was recently notified in advance of a key guilty plea in the case.

The back-and-forth inside the department points to the conflicting views and allegiances surrounding its leadership during the Trump administration — a time when the president has publicly attacked federal law enforcement.

Matthew Whitaker