Acting AG viewed as unlikely to recuse himself in Russia inquiry
Acting attorney general Matthew Whitaker has no intention of recusing himself from overseeing the special-counsel probe of Russian interference in the 2016 election, according to people close to him, who said they don’t think he would approve any subpoena of President Donald Trump as part of that investigation.
Since stepping into his new role Wednesday, Whitaker has faced questions – principally from Democrats – about whether he should recuse himself from the Russia investigation, given that he has written opinion pieces about the investigation and is a friend and political ally of a grand jury witness.
On Thursday, two people close to Whitaker said he doesn’t plan to take himself off the Russia case. They also said he is deeply skeptical of any effort to force the president’s testimony through a subpoena.
Special counsel Robert Mueller has been negotiating for months with Trump’s attorneys over the terms of a possible interview of the president. Central to those discussions has been the idea that Mueller could, if negotiations failed, subpoena the president. If Whitaker were to take the threat of a subpoena off the table, that could alter the equilibrium between the two sides and significantly reduce the chances that the president ever sits for an interview.
At the Justice Department, ethics officials typically review the past work of senior leaders to see whether they have any financial or personal conflicts that would preclude them from overseeing particular cases.
In the past, senior Justice Department officials have tended to follow such advice, but they are rarely required to do so, according to officials familiar with the process.
“The consistent tradition, through administrations of both political parties, has been for DOJ’s senior leaders to consult career ethics officials on questions of recusal,” said Matthew Axelrod, a senior department official during the Obama administration. “Here, to avoid irreparable damage to the institution’s integrity, it is crucial that the normal process be followed.”
A Justice Department spokeswoman declined to comment. Officials there have said Whitaker will follow the regular procedure in handling any ethics issues that arise.
On Thursday evening, Democratic attorneys general for 17 states and the District wrote to Whitaker urging him to recuse himself from the Russia probe.
“As chief law enforcement officers of our respective states, we ask that you recuse yourself from any role in overseeing Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election,” the Democratic attorneys general wrote. “Because a reasonable person could question your impartiality in the matter, your recusal is necessary to maintain public trust in the integrity of the investigation and to protect the essential and longstanding independence of the Department you have been chosen to lead, on an acting basis.”
In 2014, Whitaker chaired the campaign of Sam Clovis, a Republican candidate for Iowa state treasurer. Clovis went on to work as a Trump campaign adviser and has become a witness in the investigation by Mueller.
The Justice Department advises employees that “generally, an employee should seek advice from an ethics official before participating in any matter in which her impartiality could be questioned.” Regulations prohibit employees, “without written authorization, from partic- ipating in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.”
Clovis said Wednesday that Whitaker is a friend and that he texted congratulations to Whitaker on Wednesday after he became attorney general. The question for ethics officials, if they are asked, would be whether Clovis would be considered “substantially involved” in the conduct Mueller is investigating.
On the issue of his opinion columns, Whitaker could argue that he took positions before he knew the full factual and legal circumstances of the case and therefore there is no need for recusal. It is possible ethics officials could still advise him that his commentary created the appearance of a conflict of interest but leave the decision to him. If they recommended forcefully that he recuse himself and he declined, Whitaker could then be referred to the Justice Department’s Office of Professional Responsibility, and his license to practice law could be put at issue.
The White House is unconcerned about Whitaker’s previous comments, a senior White House official said. He was at the White House on Thursday afternoon for a meeting on immigration.
Trump is aware that Whitaker has been critical of the Russia probe, this official said, and Whitaker’s comments align with the president’s position.
It is unlikely that Whitaker will get the job permanently, this official said.
Whitaker’s elevation to become the nation’s top law enforcement official followed the ouster Wednesday of Jeff Sessions as attorney general. Sessions had endured months of public abuse from Trump, who soured on him because he recused himself from oversight of the Russia investigation shortly after he arrived at the Justice Department.