Are We Overly-Concerned About Whitaker?

Ken AshfordConstitution, Courts/Law, L'Affaire Russe, Trump & AdministrationLeave a Comment

Whitaker as Trump’s new Attorney General. Yes, there is cause for concern since he is a Trump loyalist, but I may be in the minority here in thinking that it is not the “red alert” that others make it to be. Here’s why:

(1) Opining on TV and print about how the Mueller investigation could or should be curtailed is different from actually making the decision. The DOJ culture is incredibly strong and if Whitaker is told by the DOJ Ethics Dept that he has a real or apparent conflict of interest, he might recuse himself and not buck the system and his colleagues. Don’t underestimate peer pressure.

(2) Relatedly, NOT recusing himself from overseeing the Mueller investigation, especially if he is advised to so by his own ethics department, would be a career killer for him.

(3) If he kills the investigation or fires Mueller, he must, by law, justify his decision in writing. With reasons. He knows he will have to defend his decision before the Dem-controlled House when the new congressional session starts in January, which might be difficult if ethics experts in his own department have told him he has a conflict of interest and should recuse himself for oversight of the Mueller investigation.

(4) He can’t “starve” the investigation by cutting off funding. The investigation is funded until June right now, and that’s plenty of time for Mueller to do what he needs to do.

(5) Besides, Mueller may not need much money since, by most accounts, Mueller is close to done anyway. He has likely written a preliminary report. That’s not going anywhere. Neither is all his work product, which is in the hands of the FBI. Also, Mueller may have indictments ready, or already filed secret indictments. Those can be filed or revealed at a moment’s notice.

(6) Don’t discount the possibility that many Republicans in this Congress, especially those who are leaving or were voted out and who Trump recently mocked, won’t try to do something to protect Mueller. Or even the next Congress, which could bring back a special prosecutor statute and invoke it. Yes, Republicans hold the Senate, but not by much, and they aren’t ALL Trump loyalists (Mitt Romney, for example)

(7) District offices, like the Southern District of New York (SDNY) are technically under the control of the Attorney General, but traditionally maintain a lot of independence. A lot of what Mueller has discovered has been “farmed out” to certain districts (like Michael Cohen, being handled by the SDNY rather that the Mueller team). Whitaker was a US Attorney in Iowa, and probably won’t mess with the independence of other non-special-prosecutors.

(8) Whatever Mueller has done can be picked up by the House in January when Dems take over. Unfortunately, the House can’t prosecute people, and therefore lacks the pressure to “flip” them like Mueller has done. But you know who does have that power? State prosecutors who are not under the control of the United States Attorney General at all. If someone committed a federal crime, chances are that they committed a states crime too (for example, if you lied about your income on a federal income tax form, you probably lied about it on your state form as well). So there’s that. Working together, state prosecutors can also investigate Trump-Russia (or just Trump on other issues)

Bottom line. If Trump thinks he can end the “witch hunt” by installing a loyalist as Attorney General, he is very wrong. Even if he manages to get the special prosecutor ousted, he will only prolong his troubles, and perhaps even add to them. Nixon found that out pretty quickly.

Letter from House to Whitaker:

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Then again, I could be wrong….

Norm Eisen believes Whitaker MUST recuse…

A just-out NY Times editorial, cowritten by George Conway (Kellyanne Conway’s husband) argues that Whitaker’s appointment is unconstitutional:

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom President Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government.


We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

In times of crisis, interim appointments need to be made. Cabinet officials die, and wars and other tragic events occur. It is very difficult to see how the current situation comports with those situations. And even if it did, there are officials readily at hand, including the deputy attorney general and the solicitor general, who were nominated by President Trump and confirmed by the Senate. Either could step in as acting attorney general, both constitutionally and statutorily.

Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in such a position of grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.


UPDATE — here’s some legal analysis that beats the shit out of my non-legal analysis, from CREW:

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