Predictably, Matthew Whitaker’s appointment as Acting Attorney General is being challenged.
Tomorrow marks the one-week anniversary of Whitaker’s elevation to head the Justice Department and the state of Maryland intends to implore a federal judge to declare that Rod Rosenstein is the “real” Acting AG.
Maryland’s objections stem from Whitaker’s long history of public comments deriding the Special Counsel probe he now oversees. Whitaker was immediately taken to task by the media following his appointment with critics citing, among other things, Op-Eds he penned for The Hill, USA Today and CNN in which Whitaker suggested he would indict Hillary Clinton and that if it were up to him, the Robert Mueller probe would be reined in.
Well, now it is up to him. Unlike Jeff Sessions, Whitaker hasn’t recused himself from the Mueller probe, which means he can theoretically make good on his implicit threats delivered via a CNN interview in the summer of 2017, when he said, on national television, that were Sessions “replaced with a recess appointment … Bob Mueller’s budget could be reduced so low that his investigation grinds to almost a halt.”
Critics have also cited a variety of interviews Whitaker gave while heading something called “FACT”. In a radio interview in June 2017, for instance, Whitaker said there was “no collusion” with between the Trump campaign and Russia, and while he’s most assuredly entitled to his opinion on that, he cannot be expected to act as an impartial supervisor to a probe into that same alleged collusion.
Other reports suggest that Whitaker had private phone conversations with the President earlier this year behind the backs of Sessions and Rosenstein in which he (Whitaker) counseled Trump on how the White House might go about compelling a DoJ investigation of Hillary Clinton. Sources say that even as he tried to pitch himself to Trump as an ally, he presented himself to Sessions and Rosenstein as an advocate for DoJ independence. In other words: He played both sides.
For his part, Trump made the mistake of telling the media late last week that he “doesn’t know Matt Whitaker”, despite having said something completely different in a Fox News interview.
As NBC reports, “Maryland’s attorney general, Brian Frosh, a Democrat, argues in court documents to be filed Tuesday that if Trump had the kind of authority the White House claims, he could fire the attorney general ‘then appoint a carefully selected senior employee who he was confident would terminate or otherwise severely limit the [Mueller] investigation.'”
That is of course precisely what Trump is trying to do and everybody with any sense knows it. Maryland will argue that Whitaker’s elevation constitutes a violation of federal law and goes beyond Trump’s Constitutional authority.
Frosh goes on to say the following about Trump’s “troubling” decision:
It is troubling, to say the least, that the president is attempting to fill a ‘vacancy’ he created himself with a ‘temporary’ appointment that might last for many months or years. Especially when, as there, the temporary appointee has not been confirmed by the Senate.
Last week, while speaking to reporters at the White House before departing for France, Trump tried to claim that Whitaker needn’t be confirmed by the Senate because Mueller wasn’t similarly confirmed, an assertion that makes almost no sense.
“Maryland’s legal papers say Whitaker’s appointment marks the first time since 1868, when Congress passed a succession law for the Justice Department, that someone named to be acting attorney general was not already serving in a Senate-confirmed position”, NBC goes on to say.
Meanwhile, Whitaker is reportedly consulting with ethics officials about the possibility of recusal from the Mueller probe. “Acting Attorney General Matt Whitaker is fully committed to following all appropriate processes and procedures at the Department of Justice, including consulting with senior ethics officials on his oversight responsibilities and matters that may warrant recusal,” a DoJ spokeswoman said in a statement on Monday.
Ultimately, it looks like this will go one of two ways: Either Whitaker recuses himself posthaste in order to silence critics, or else this ends up in the Supreme Court, assuming somebody can convince a federal judge to rule that Rosenstein is in fact the Acting AG. Of course if he recuses himself, Whitaker will find himself in the same boat as Sessions, subjected to endless criticism from Trump.