Justice as AG Whitaker would have it
By forcing out Attorney General Jeff Sessions and appointing Sessions’ chief of staff, Matthew Whitaker, as acting attorney general to take over the Justice Department — and, not incidentally, the investigation by the special counsel, Robert Mueller — President Donald Trump has set off a storm of legal questions.
Does the appointment of Whitaker comport with the Appointments Clause of the Constitution or the Federal Vacancies Reform Act of 1998? Doesn’t the law give control of the department to Rod Rosenstein, the deputy attorney general who appointed Mueller and oversaw the investigation because Sessions had recused himself?
To add to the academic discussion, the Justice Department’s own Office of Legal Counsel, which weighs in on major legal questions, gave its imprimatur to Trump’s decision last Wednesday. Now the state of Maryland and at least one criminal defendant are challenging the legality of Whitaker’s appointment in hopes that a federal judge will declare it invalid.
But all of this debate, hairsplitting and litigation distracts from a more persistent question: Is it OK for a president to shut down an investigation of himself? To answer that question yes is to take the position that not only this president, but any president in the future, is free to take the law into his own hands.
The reason Trump replaced Sessions with Whitaker seems clear. When The Daily Caller, a conservative news website, asked Trump last week for his thoughts about the man now running the Justice Department, the president volunteered, “As far as I’m concerned, this is an investigation that should have never been brought. It should have never been had. It’s something that should have never been brought. It’s an illegal investigation.”
Whitaker is an avowed antagonist of Mueller — he has called the investigation a witch hunt, said Mueller’s team should not investigate Trump’s finances and suggested that an attorney general could slash the special counsel’s budget.
As if concerns about the Constitution, the law and Whitaker’s judgment weren’t enough, the broader picture that has emerged about Whitaker is even more disturbing. He has expressed skepticism toward Marbury v. Madison, the landmark case that established the concept of judicial review; he would support the confirmation of federal judges who hold “a biblical view of justice”; he may have prosecuted a political opponent for improper reasons when he was a federal prosecutor in Iowa; and then there’s the fiasco of his business involvement with a company, under investigation by the FBI, that is accused of scamming customers.
Justice Department regulations governing the day-today operations of the special counsel’s office allow for Whitaker to be read in on many of its inner workings, including that the acting attorney general be given “an explanation for any investigative or prosecutorial step” that Mueller decides to take. So there is nothing to keep Whitaker from being the president’s eyes and ears inside the most closely guarded investigation in the history of American politics.
Congress could pass a law to prevent the president from firing Mueller, but Sen. Mitch McConnell, the majority leader, has shown no interest in doing that.
As Trump continues to work to undermine this investigation, McConnell and his fellow Republican leaders should pause to consider the standard, and the precedent, they are at a growing risk of setting.