Last week ended with an extraordinary request of the U.S. Supreme Court: Decide in a pending gun case out of Nevada whether Matthew Whitaker, the acting attorney general, can lawfully lead the Justice Department or whether his dubious appointment taints everything the DOJ now does. President Trump spent the weekend defending Whitaker’s promotion — but the case for Whitaker gets less credible by the day.
That’s largely because Trump continues to be unable or unwilling to talk about Whitaker in any way other than to incriminate them both in some sort of obstruction of justice. On Sunday the president told a reporter that he would not stop Whitaker if Whitaker moved to curtail special counsel Robert Mueller’s investigation into the Trump team’s Russia ties. He also claimed, implausibly, that he did not know that Whitaker long has been critical of the scope of the Mueller probe. Whitaker shared his concerns in public as early as August 2017 when he wrote this op-ed piece. Does anyone believe Trump wasn’t aware of it?
It’s easy to understand why Trump would want a toady at the Justice Department as the Mueller probe enters what we all presume are its final phases. Whitaker’s predecessor, Jeff Sessions, had recused himself from oversight of the Mueller probe, whatever that actually meant in real life. But Whitaker comes with no such restraints. That means everything to Trump, and it explains why the White House won’t dare subject Whitaker to a confirmation process.
What’s harder to understand about what we are seeing is precisely what Whitaker has done to otherwise deserve the promotion he has just received. When Whitaker was a federal prosecutor in Iowa during the Bush administration, he was no star. He exhibited instead what many considered an overzealous yearning for partisan prosecutions. After Whitaker left the federal government, he was an advisory board member of a Miami company accused of fraud by its investors. That didn’t go so well. His main contribution as a board member appears to have been efforts to silence critics of the company by threatening them with legal action.
There is nothing in Whitaker’s experience or background that justifies the position he now holds. In 2016, Whitaker’s company defaulted on its federal obligations over a taxpayer-subsidized apartment rehabilitation project in Iowa. This may seem like the ordinary course of business to a president who has been serially bankrupt, but it shows nothing of the integrity and respect for the rule of law an attorney general must have. Whitaker’s relationship with Sam Clovis, a political operative now a Mueller witness, alone should disqualify him from overseeing the special counsel’s work.
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And now there are other concerns as well. On Saturday, for example, we learned there are questions about whether Whitaker has complied with the Ethics in Government Act, which requires senior government officials to publicly disclose certain financial information. The Justice Department reportedly has failed or refused to provide this information about Whitaker despite requests to do so from an ethics organization. Indeed, DOJ officials evidently won’t even disclose when they plan to disclose Whitaker’s information. What’s in those financial records? Why can’t we see them?
It’s too early to know how the Supreme Court will react to the Whitaker problem they’ve just had handed to them. It’s likely they won’t react at all, at least on the merits, at least for now. But the argument being made by the respected Supreme Court litigator Thomas Goldstein and others — that the Justice Department cannot lawfully represent the federal government in court if it is led by an unlawful attorney general — is a serious one the courts cannot ignore for long. The Office of Legal Counsel memo, drafted and disclosed last week, is nothing more than an earnest effort at making a bad legal position look palatable.
Even if Whitaker’s appointment were legitimate, and in the view of at least experts, it is not, he is not nearly as qualified as are other Justice Department officials Trump bypassed when he picked Whitaker to be his “eyes and ears” into the Mueller probe. And even if Congress passes that bill designed to protect Mueller — don’t bet on it — it still leaves us with an attorney general who is unqualified to otherwise run the Justice Department. How weak is Whitaker’s support? Washington viewers of Fox News lately got to see a new commercial from a conservative group advocating for Whitaker’s recusal with the message: “America needs an attorney general who doesn’t play politics.”
Every attorney general plays politics. Some play it more artfully than others. But no attorney general has ever been appointed solely and expressly to offer political protection to a president under an existential investigation. Maybe enough congressional Republicans will stand up to Trump and force him to nominate a legitimate attorney general. Maybe the federal courts will void the Whitaker pick. Maybe members of the Democratic-controlled House of Representatives next term can figure out a way to hold Whitaker accountable. Maybe. Maybe. Maybe. Today there is little reason to feel thankful for any of this.