DOJ ethics of­fice is­sued guid­ance on Whi­taker’s role in Rus­sia in­ves­ti­ga­tion

Re­quest for ad­vice was sub­mit­ted about act­ing at­tor­ney gen­eral

The Washington Post - - POLITICS & THE NATION - BY SHANE HARRIS Carol D. Leon­nig and Devlin Bar­rett con­trib­uted to this re­port.

A Jus­tice Depart­ment ethics of­fice has re­ceived re­quests for ad­vice and is­sued guid­ance con­cern­ing act­ing at­tor­ney gen­eral Matthew G. Whi­taker’s in­volve­ment in the spe­cial coun­sel’s in­ves­ti­ga­tion of Rus­sian in­ter­fer­ence in the 2016 elec­tion, ac­cord­ing to Jus­tice Depart­ment records.

It’s un­clear who made the re­quests to the Jus­tice Depart­ment’s Pro­fes­sional Re­spon­si­bil­ity Ad­vi­sory Of­fice, which pro­vides pro­fes­sional and ethics ad­vice to gov­ern­ment lawyers and depart­ment lead­ers, and what ad­vice, guid­ance or rec­om­men­da­tions the of­fice pro­vided. But the records’ ex­is­tence shows, for the first time, that ques­tions about Whi­taker’s po­ten­tial control over an in­ves­ti­ga­tion that im­pli­cates Pres­i­dent Trump are a point of dis­cus­sion within the Jus­tice Depart­ment.

Since Trump ap­pointed Whi­taker last month, the Jus­tice Depart­ment has re­fused to say if he has con­sulted ethics of­fi­cials, or plans to, about whether he should re­cuse him­self from the Rus­sia probe. Whi­taker was pub­licly crit­i­cal of the in­ves­ti­ga­tion be­fore his ap­point­ment and has faced pres­sure, mostly from Democrats, not to take a su­per­vi­sory role.

Jus­tice Depart­ment of­fi­cials have said Whi­taker would fol­low Jus­tice Depart­ment pro­ce­dures for han­dling ethics is­sues that may arise.

The ad­vi­sory of­fice ac­knowl­edged it had found the records in re­sponse to a Free­dom of In­for­ma­tion Act re­quest filed by Ben­jamin Wittes and Scott An­der­son of the Law­fare blog, who shared the of­fice’s re­sponse with The Wash­ing­ton Post.

They had asked for “re­quests for ad­vice, au­tho­riza­tions, de­ter­mi­na­tions, guid­ance, or le­gal is­sues” aris­ing from Whi­taker’s pos­si­ble in­volve­ment in or su­per­vi­sion of the Rus­sia probe, as well as “ad­vice, guid­ance, or writ­ten opin­ions that [the of­fice] has pro­vided re­gard­ing eth­i­cal or le­gal is­sues” aris­ing from Whi­taker’s role.

The of­fice said it had found 13 pages of records that were re­spon­sive to those re­quests. Wittes and An­der­son also asked for any “au­tho­riza­tions or de­ter­mi­na­tions” that were made, but the of­fice said it found no records, suggest­ing it may not have reached for­mal con­clu­sions about whether Whi­taker should over­see the probe.

The of­fice said it was with­hold­ing all of the doc­u­ments, cit­ing a le­gal ex­emp­tion that al­lows the gov­ern­ment to keep pri­vate any in­ter­nal com­mu­ni­ca­tions that might be pro­tected by at­tor­ney-client priv­i­lege or could be con­sid­ered de­lib­er­a­tive in na­ture.

The ques­tion of Whi­taker’s pos­si­ble re­cusal has dogged him since Trump ap­pointed the for­mer U.S. at­tor­ney to re­place Jeff Ses­sions, whom the pres­i­dent had ac­cused of dis­loy­alty for re­cus­ing from the Rus­sia probe. Whi­taker had been serv­ing as Ses­sions’s chief of staff at the time Trump ousted him.

Be­fore join­ing the Trump ad­min­is­tra­tion, Whi­taker ap­peared on ca­ble news to praise the pres­i­dent and crit­i­cize the probe, led by for­mer FBI di­rec­tor Robert S. Mueller III.

Ap­pear­ing on CNN in July 2017, Whi­taker mused about dis­rupt­ing the probe by starv­ing it of funds.

“So I could see a sce­nario where Jeff Ses­sions is re­placed with a re­cess ap­point­ment,” Whi­taker said then, “and that at­tor­ney gen­eral doesn’t fire Bob Mueller, but he just re­duces his bud­get to so low that his in­ves­ti­ga­tion grinds to al­most a halt.”

Be­fore Whi­taker’s ap­point­ment, the deputy at­tor­ney gen­eral, Rod J. Rosen­stein, had been over­see­ing Mueller’s work.

As a prac­ti­cal mat­ter, it ap­pears Rosen­stein may still be fill­ing that role. Trump’s le­gal team views him as the day- do day su­per­vi­sor, ac­cord­ing to peo­ple fa­mil­iar with the mat­ter. Trump’s lawyers were re­ferred to Rosen­stein, and not Whi­taker, when they raised a con­cern be­fore Thanks­giv­ing about a ref­er­ence to Trump in draft court doc­u­ments, peo­ple fa­mil­iar with the dis­cus­sion said.


Act­ing at­tor­ney gen­eral Matthew G. Whi­taker, right, walks across the South Lawn of the White House with Jared Kush­ner, Pres­i­dent Trump’s se­nior ad­viser and son-in-law.

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