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"How is this legal?"

Trump's appointment of Matt Whitaker to acting attorney general is raising all sorts of legal red flags

by Greg Walters
Nov 8 2018, 8:37pm

In 2017, Matthew Whitaker went on television to explain how President Trump could appoint an acting attorney general who could effectively shut down the Russia investigation without actually firing the official leading the probe, Bob Mueller.

On Wednesday, Trump made Whitaker acting attorney general.

Trump’s decision to appoint an outspoken Mueller critic not only threatens the investigation, it risks running afoul of the constitution, two top Washington lawyers said Thursday.

The constitutionality of Whitaker’s appointment has sparked a fierce debate, but one thing is clear: Trump’s decision is covered in legal and ethical red flags, legal experts told VICE News.

At best, Trump appears to be twisting a law aimed at ensuring qualified candidates can be inserted into vacant positions during a crisis to his own ends, legal experts said.

“It seems as if Trump is trying to take over the Department of Justice by exploiting a legal loophole.”

“It seems as if Trump is trying to take over the Department of Justice by exploiting a legal loophole,” said Rebecca Roiphe, a former prosecutor and an expert on prosecutorial ethics at New York Law School. “I can’t say yet whether he’ll succeed, but it sure looks that way.”

For his part, Whitaker has shown no signs of relinquishing his new powers, reported The Washington Post.

IS WHITAKER’S APPOINTMENT LEGAL?

If you ask the lawyer who personally drafted the special counsel regulations that now govern Mueller’s work, the answer is unequivocally no.

Lawyers Neal Katyal and George Conway — husband of Trump adviser Kellyanne Conway — called the president's move downright unconstitutional.

Together, they argue Trump should be required to pick someone for this all-important job who had already been confirmed to a government post by the Senate.

“President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid,” they wrote in The New York Times Thursday.

Whitaker’s previous job as Sessions’ chief of staff didn’t require Senate confirmation.

And that makes Whitaker the first acting attorney general in American history to assume the post without having already been confirmed by the Senate to another top government job, according to Marty Lederman, a professor at Georgetown Law Center.

Read: Jeff Sessions is gone. Here's what that means for Robert Mueller

The enormous power of the attorney general means nobody should assume the post without giving the Senate a chance to confirm they’re fit for government service, Katyal and Conway argued.

“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,” Katyal and Conway wrote.

‘THE APPEARANCE OF IMPARTIALITY’

Here are the legal red flags about Matt Whitaker taking control of Mueller's  investigation
Deputy U.S. Attorney General Rod Rosenstein announces grand jury indictments of 12 Russian intelligence officers in special counsel Robert Mueller's Russia investigation, during a news conference at the Justice Department in Washington, U.S., July 13, 2018. REUTERS/Leah Millis

Whitaker hasn't just forecasted what he would do if he took control of Mueller’s probe, he’s consistently and publicly attacked the special counsel. He’s accused Mueller over going “too far,” retweeted an article that called the special counsel’s team a “lynch mob,” and said inquiries into Trump’s finances was a “red line.”

At the very least, Whitaker’s public criticisms of the Mueller investigation raise questions about his impartiality that warrant a careful review by DOJ ethics officials, legal analysts said.

“I definitely think he should consult with the department’s ethics attorneys,” said Roiphe. “It would be shocking if he didn’t.”

The same ethical advisors who advised Sessions to recuse himself from overseeing the Mueller investigation, due to his personal role in the Trump campaign, will have a lot of material to dig through with Whitaker.

He’s publicly defended the decision by Trump campaign top brass, at the height of the 2016 campaign, to meet with a lawyer from Moscow billed as bringing dirt on Trump’s opponent, Hillary Clinton. That’s not the only time he’s spoken out about Trump’s former challenger. In 2016, at the height of the campaign, he wrote an op-ed entitled: “I would indict Hillary Clinton,” arguing she should have faced criminal charges over her email scandal.

“I definitely think he should consult with the department’s ethics attorneys. It would be shocking if he didn’t.”

Regardless of what DOJ ethics officials would advise, Whitaker should at the very least seek guidance, legal experts told VICE News.

“As a broad principle, I don’t think there’s any prosecutor that doesn’t understand their own obligation to either recuse or seek advice if, for whatever reason, their impartiality could be questioned,” said Mary McCord, the former DOJ official who led the department’s investigation of foreign meddling in the 2016 election prior to Mueller’s appointment.

Roiphe agreed that the matter clearly merits review. But she said she doesn’t believe those officials would ultimately conclude that Whitaker needs to be recused from the Mueller probe, because he doesn’t appear to neatly satisfy the technical requirements of conflict of interest due to either political or financial reasons.

“I think you could argue that a reasonable person with knowledge of the facts would question Whitaker’s impartiality here,” Roiphe said. “But I don’t think the people who look at these issues will recommend recusal, because I don’t think the ethics guidelines were written with this kind of situation in mind.”

It’s not clear whether Whitaker has sought to consult with DOJ ethics officials, and the Department of Justice didn’t return a request for comment.

OBSTRUCTION OF JUSTICE?

Trump’s decision to part with Sessions has reignited another legal question that’s long dogged his presidency: obstruction of justice.

Though Trump has the power to fire any of his cabinet members, if he did so with the corrupt intent of confounding a criminal investigation, that may amount to evidence of obstruction of justice, Harry Sandick, a former federal prosecutor told VICE News.

But the unusual nature of this appointment all seems to suggest that limiting the Mueller investigation was exactly what Trump had in mind, legal experts said.

In normal circumstances, the Deputy Attorney General would immediately take over the top spot in the department.

But in this case, that person is Rod Rosenstein — the man who appointed Mueller in the first place back in 2017. Skipping over Rosenstein to pick a loyalist with limited experience to become the country’s top law enforcement official has set further alarm bells ringing.

“Sessions has been the most loyal person in the entire cabinet when it comes to carrying out the president’s agenda,” said Mary McCord. “But the one thing he did that the president didn’t like is recuse himself from the investigation. otherwise, I can’t fathom why Trump would be asking for Sessions’ resignation.”

Cover image: President Donald Trump announced in a tweet that he was naming Matt Whitaker as acting attorney general after Attorney General Jeff Sessions was pushed out Nov. 7, 2018. (AP Photo/Charlie Neibergall, File)