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.

Matt Whi­taker

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