Trump Wants Us Focused on the Wall and Not Whitaker

Trump Wants Us Focused on the Wall and Not Whitaker
AP Photo/Orlin Wagner
Trump Wants Us Focused on the Wall and Not Whitaker
AP Photo/Orlin Wagner
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President Trump is making sure the news coverage is consumed by the subject of a wall at the southern border and the partial shutdown of the government that could go on quite a while. He can’t stop tweeting about this topic and even blamed Democrats for two children dying in detention near the border. What’s gone quiet are tweets and talk of the special counsel’s “witch hunt” as Trump hopes  new concerns about acting Attorney General Matt Whitaker stay buried under the noisy radar of Syria, Democrats taking over the House and even an unexpected broadside from incoming Utah Sen. Mitt Romney.

Obscured by the holiday rush and the ticking shutdown clocks on cable news, recent revelations about Whitaker have set off alarm bells among those watching what are thought to be the final stages of Robert Mueller’s investigation, raising worries that Whitaker would be happy to step in and knee-cap it on Trump’s behalf.

Not only is the president talking to Whitaker about cases he is implicated in, but Whitaker has now refused to recuse himself from the investigation that Mueller is conducting into Russian interference in the 2016 election and other related crimes.

While Whitaker is likely to be replaced by attorney general nominee William Barr, that confirmation process promises to be a lengthy one -- complicated by Barr’s unsolicited offering of a 19-page letter in June that criticized the special counsel’s examination of possible obstruction of justice as “fatally misconceived.”

Whitaker himself was first chosen by Trump to become chief of staff to then-AG Jeff Sessions in October 2017 after the cable news commentator criticized Mueller on CNN.  He became Trump’s eyes and ears within the DOJ as the president ceased talking to Sessions and, according to the New York Times, was among several officials Trump “repeatedly pressed” about the status of the department’s probes related to Hillary Clinton. When Trump dumped Sessions the day after the midterm elections and promoted Whitaker to the job of acting attorney general, the appointee was keenly aware that the president wanted someone in the job who -- unlike Sessions -- would not have to recuse himself from the Russia probe.

President Trump has proven repeatedly, through outraged tweets about Sessions’ recusal and his recurring requests to department officials to investigate Clinton and former FBI Director James Comey, that he perceives the DOJ -- particularly the attorney general -- as a legal team devoted to his personal priorities and not to protecting the rule of law. Trump has been disappointed by FBI Director Christopher Wray for not pursuing these investigations with the proper energy.

Whitaker, on the other hand, is close to the president and seems to support his concerns. CNN reported in November that Whitaker was involved in an effort to fire Deputy Attorney General Rod Rosenstein in late September: “A source close to Sessions says that the former attorney general realized that Whitaker was ‘self-dealing’ after reports surfaced in September that Whitaker had spoken to [White House Chief of Staff John] Kelly and had discussed plans to become the No. 2 at the Justice Department if Rosenstein was forced to resign.”

Kim Wehle, former associate independent counsel on the Whitewater investigation, said in an interview with RCP that Whitaker is the “one to watch” because he has plenty of room to impede the investigation. “Whitaker is the linchpin for stymieing the Mueller probe, and Trump knows it. It’s why he’s there instead of the proper person for the job -- Rod Rosenstein. There is no longer a statute in place to ensure that Mueller can continue unimpeded, and this Republican Congress refused to pass one. Under the law that does exist, Whitaker has lots of options for frustrating the investigation,” said Wehle, who is also a former assistant U.S. attorney and a professor of law.  

The time for Whitaker to intervene would be now, observers say, not only on critical steps the investigation may take but in handling the release of the report, should that come before Barr is confirmed and in charge of that decision. Whitaker would be free to change the course of the investigation without threat of political pressure since his interference would be hidden until it’s too late to spotlight it.  The special counsel regulations require that Congress be informed of any steps Whitaker takes to limit the Mueller investigation, but not immediately; the update is required only after the conclusion of the probe.

Since his promotion to acting AG, Whitaker’s ethics have been questioned regarding his role as a member of the advisory board of a company accused of defrauding thousands of customers, coupled with revelations that he falsely claimed on his resume to have been an academic All-American while playing football for the University of Iowa.

Aware of the scrutiny of his past, as well of his well-publicized criticism of the Mueller investigation on CNN last year, Whitaker chose to bypass the regular process of requesting a formal review from ethics officials at the Justice Department. Instead, he assembled his own private group of advisers to consider his potential conflicts of interest. The DOJ’s ethics department nonetheless assessed the situation. While it did not consider Whitaker’s connections to the White House, and the president in particular, it determined his televised comments on the Mueller probe created at least the appearance of an inability to remain impartial and that recusal would protect against that perception. It also deemed the matter a “close call” and left it up to Whitaker, who, along with his advisers, decided against recusal.

Democratic Sen. Mark Warner, ranking chairman of the Senate Intelligence Committee, said Whitaker’s refusal was “deeply alarming” and “only reinforces the probability that his antagonism toward the Mueller probe was the sole reason for his selection as Acting Attorney General in the first place.”

Whitaker’s appointment has been challenged in court by the attorney general of Maryland, who says that Rosenstein should be the rightful acting AG and that Whitaker should be removed. Citizens for Responsibility and Ethics in Washington (CREW) wrote the DOJ inspector general last week asking the department to open an investigation into whether Whitaker “violated the Standards of Ethical Conduct for Employees of the Executive Branch when he decided not to seek a formal ruling on recusal from the ethics department within DOJ.”

Reports indicate that Rosenstein is still overseeing the Mueller investigation but that Whitaker is now informed of significant developments and was told by the special counsel in advance that Michael Cohen would plead guilty to lying to Congress.

President Trump denied reports from mid-December that he had “lashed out at Whitaker” following the charges against Cohen by prosecutors for the Southern District of New York, but his lawyer Rudy Giuliani confirmed at the time to CNN that “the president and his lawyers are upset about the professional prosecutors in the Southern District of New York going after a non-crime and the innuendo the president was involved.”

Rep. Adam Schiff, who takes over as chairman of the House Intelligence Committee this week, said on CNN that Whitaker has already overstepped: “The president of the United States is discussing a case in which he’s implicated with the attorney general. That is wrong at every level and of course it will taint anything this acting attorney general does.”

In the new year it’s likely House Democrats will raise numerous questions about Whitaker -- so many that Senate Republicans may want to get Barr confirmed as soon as they can.

A.B. Stoddard is associate editor of RealClearPolitics and a columnist. 

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