Terry H. Schwadron
Nov. 11, 2018
Matthew G. Whitaker, acting attorney general for just a few days, already is in big trouble about continuing. Indeed, as people learn what the former television legal commentator has said and done, the pressure is mounting, according to news reports.
We have people claiming the appointment is illegal, that Whitaker must, like Sessions, recuse himself from all-things-Russia, or be denied office for bad behavior in the past. We have criticism that he is not Senate-reviewed, and would not pass such a confirmation process.
Even the White House, apparently backing off Whitaker, is now actively looking at alternatives, including former New Jersey Gov. Chris Christie and Florida Atty. Gen. Pam Biondi because of new findings about Whitaker and growing opposition. However, Christie would face the same questions about recusing himself that ousted Atty. Gen. Jeff Sessions did, since he had been part of the Trump campaign.
Meanwhile, Sen. Majority Leader Mitch McConnell told a Kentucky radio show that he doesn’t think there is “any chance” Special Counsel Robert Mueller’s investigation will end despite Whitaker, an open critic of the inquiry, taking over. “The President has said on multiple occasions the Mueller investigation should be completed. He wish it would happen sooner. But I don’t think there’s any chance that the Mueller investigation will not be allowed to finish.”
Nevertheless, there was no clarity about who might do anything to squash the appointment, or force recusal from the Mueller matter, or limit Whitaker from touching the special counsel investigation without a court action for which the first question would have to establish appropriate “standing” or aggrieved party, to bring the lawsuit. For his part, the president told reporters that he didn’t really know Whitaker, which doesn’t pass much of a sniff test.
Within the first day or so,
- Congressional Democrats demanded that Whitaker, a Trump loyalist, recuse himself from overseeing the Mueller investigation because of commentsabout the Mueller probe that Whitaker made last year before he became Sessions’ chief of staff. Republicans generally were silent on Whitaker’s choice.
- Marchers immediately took to the streets in Washington for fear that Whitaker would move to shut down or limit the special counsel investigation. In New York, about 4,000 people marched from Times Square to Union Squarewith signs saying and “Trump is not above the law.”
- The New York Times reported that Whitaker “once espoused the view that the courts ‘are supposed to be the inferior branch’ and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional.” He critized the 1803 decision Marbury v. Madison that essentially started the court’s role as a co-equal arbiter of constitutionality with the executive and legislative branches of government.
- The Washington Post reported that Whitaker was paid $10,000as a member of an advisory board to a company accused by the Federal Trade Commission of fraud. Court filings show that in the end, the company paid a settlement of $25 million and closed without admitting guilt. The company “bilked thousands of consumers out of millions of dollars” by promising inventors lucrative patent agreements, according to the complaint, and remains under investigation by the Miami FBI office.
- Led by an New York Times op-edin the New York Times by attorneys Neal Katyal, former acting solicitor general, and George Conway, litigator and spouse of Kellyanne Conway, lawyers of varying political stripes were saying that Trump’s appointment of Whitaker was illegal because the Constitution dictates that anyone serving in a “principal role” must be confirmed by the Senate, a process burdened with obstacles.
- Whitaker once said that judges should be Christian and proposed blocking non-religious people from judicial appointments. As a Republican candidate for Senate in 2014, Whitaker argued that judges needed a “biblical view of justice” and questioned the judgment of secular lawyers.
Stepping back, the appointment of Whitaker was meeting opposition as a political move that surprised even senior staff in the White House, as a legally suspect move that could backfire as further evidence for Special Counsel Mueller of obstruction of justice, and basically inethical behavior in putting in place a political loyalist without the appropriate background checks for a senior administrative job.
Axios argued that Trump likes and trusts Whitaker, according to sources who could easily imagine Trump appointing him as a permanent replacement. That got more complicated yesterday with two more Senate seats believed won by Republicans in Arizona and Florida moving towards recounts. The Republican Senate majority is narrow, requiring some Democratic support to approve confirmations.
CNN reportedthat in addition to Christie and Bondi, Trump was said to be considering Labor Secretary Alexander Acosta, Solicitor General Noel Francisco, Rep. John Ratcliffe, R-Texas, former Judge John Michael Luttig, Judge Edith Jones, former Judge Janice Rogers Brown, retiring Rep. Trey Gowdy, R-SC, and Sen. Lindsey Graham, R-SC.
Overall, the criticism ran along the line that Whitaker is the wrong candidate, and that Trump was acting out of emotion rather than logic in putting into place a loyalist attorney general who might flout legal traditions to keep the Mueller investigation in check. Meanwhile, speculation was wide that Mueller is already at work on his final report and recommendations. Mueller, of course, remained quiet.
Slate, the online magazine, mused about whether Whitaker’s appointment actually is legal. Any federal criminal defendant could challenge Whitaker’s authority to prosecute him, for example. As they outlined, the arguments for illegitimacy include the Katyal-Conway argument that the Constitution’s Appointments Clause requires any “principal officer” to be confirmed “with the Advice and Consent of the Senate.” There is no question that the attorney general, like any Cabinet secretary, is a principal officer. Yet Whitaker has not received Senate confirmation, except a 2004 confirmation for federal prosecutor that has since lapsed. So how can he lawfully serve as the head of the Justice Department?
His appointment under the Federal Vacancy Reform Act allows Whitaker to serve for 210 days. In addition, under Justice Department succession rules, the job should have gone automatically to Deputy Atty. Gen. Rod J. Rosenstein. There is a lesser argument about whether the appointment came as a result of a resignation or termination.
What remains as a possibility is that Whitaker will not stop the Mueller investigation, but move to cut off its funds, as he had outlined on television in years past. TalkingPointsMemo.com noted that Whitaker could take more subtle steps to stop the probe than outright cancellations. As things stand today, it would be Whitaker who would have to approve a subpoena for the president to testify to a Mueller deposition, for example.
Meanwhile in another New York Times op-ed, Richard Ben Veniste and George Frampton outline how Mueller could circumvent Whitakerto get his materials and evidence to an incoming Democratic-majority House.
The president took a big, quick post-election swing of his political bat, and it looks as if he missed the ball altogether.