Even if his appointment is valid, Whitaker must recuse from probe

presidential action must always take center stage, it is ultimately Mr. Whitaker’s decision — and duty — to recuse himself from the active oversight of the Mueller investigation that matters right now. Only this move will restore the public’s confidence in American fealty to the rule of law.

Fundamentally, adherence to the rule of law means everyone, regardless of title, money or station in life, plays by the same rules. Lady Justice is blindfolded for a reason, after all. Under Department of Justice conflict rules, no department employee can participate in a criminal investigation if he or she has a personal or political relationship with any person or organization substantially involved in the investigation.

In Whitaker’s case, he is conflicted on at least two levels. First, he is a direct participant in President Trump’s decision to fire Jeff Sessions, which is likely tantamount to obstruction of justice in plain sight.

Second, in 2017, Whitaker penned an op-ed that publicly commits him to the position that the Mueller investigation is legally prohibited from investigating the finances of Trump and his family. “It is time for (Deputy Attorney General Rod) Rosenstein,” wrote Whitaker, “to order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel.”

Given his very public comments and participation in the ouster of Sessions, there is no legal nor political basis for the American people to have confidence in the impartiality and professionalism of Whitaker as the overseer of Robert Mueller’s work.

This is why the recent comments of Senate Judiciary Chairman Chuck Grassley, R-Iowa, on the subject should trouble all Americans. Grassley echoed Trump’s initial defense of Whitaker’s antagonistic comments toward the Mueller investigation, saying that they were of no concern “as long as he made them as a private citizen.”

Americans must reject this parsing of impartiality — the notion that private comments do not impact public actions. The argument that comments made in the private sector do not accurately reflect an individual’s true, substantive view of a given issue’s merits once an officeholder is absurd.

When considering conflicts of interest, it is the appearance of impropriety that must dictate the exercise of both discretion and caution, lest the public come to view critical legal judgments as extensions of mere political arguments. Or, is the American understanding of the rule of law simply the next norm to be trampled on in the name of political expediency?

Next time Whitaker gives a public address, he should announce his immediate recusal from the Mueller investigation. His duty demands no less.