When he was asked Wednesday by the Daily Caller why he had appointed Matthew G. Whitaker as acting attorney general, Trump replied: “Look, as far as I’m concerned this is an investigation that should have never been brought. It should have never been had. It’s something that should have never been brought. It’s an illegal investigation.” This is similar to the admission that Trump made to Lester Holt of NBC News in May 2017 that he fired FBI Director James B. Comey because, “this Russia thing with Trump and Russia is a made-up story.” Once again, the president is essentially admitting to obstruction of justice.
At least Comey was ultimately replaced with another nonpartisan professional — Christopher A. Wray. That’s not the case with Sessions.
The more we know about his successor, the more alarming his appointment appears to be. Whitaker’s track record, apart from a stint as U.S. attorney in southern Iowa, consists of running small businesses such as a day-care center, trying penny-ante cases involving a dry-cleaning business, and acting as a consultant for a shady company, since shut down, known as World Patent Marketing. The very name screams fraud. Whitaker now denies being aware of fraud allegations, but at the time he vigorously defended the firm.
Clearly, Whitaker was not appointed based on his legal credentials. He was appointed because he was such an outspoken booster of Trump and basher of Mueller. As a private legal commentator, he dismissed allegations of both collusion and obstruction of justice against Trump.
His very appointment has been criticized as unconstitutional by eminent legal experts, including conservative legal scholar John Yoo and conservative attorney George T. Conway III, because he is not a Senate-confirmed official. “In order to prevent a breakdown of federal law enforcement,” Yoo urges, “the White House should hurry to select a permanent attorney general before any more damage is done.”
The only precedent the Justice Department could cite to justify Whitaker’s appointment was another non-confirmed official who served as acting attorney general in 1866 for all of six days. If that is the precedent, then Whitaker should have already left office. Yet Whitaker is still on the job — and he still hasn’t recused himself from supervising the Mueller investigation.
Some informed observers, including Lawfare editor Benjamin Wittes and former FBI agent Asha Rangappa, argue that it’s too late for Whitaker to stop the Mueller investigation. Maybe, maybe not. But Whitaker can certainly impede Mueller’s work by vetoing difficult decisions such as whether to fight a court battle to compel Trump to testify orally or to publicly release the Mueller report.
Whitaker can do great damage even if he does nothing more than read all of Mueller’s files – as he now will have the right to do – and share that information with the White House. Sure, he would be risking impeachment or even prosecution for obstruction of justice, but Whitaker is not someone who has exactly exemplified devotion to the rule of law: He believes that Marbury v. Madison, the seminal 1803 case establishing legal review of legislation, was wrongly decided, and he has said that only Christians should serve as judges.
There is already cause for concern that Whitaker may have tipped off the White House. On Thursday, Trump tweeted, “The inner workings of the Mueller investigation are a total mess. They have found no collusion and have gone absolutely nuts. They are screaming and shouting at people, horribly threatening them to come up with the answers they want. They are a disgrace to our Nation.” Trump has never used the phrase “inner workings” before. Maybe he was just spouting off. Maybe he was reacting to information shared with him by witnesses Mueller has interrogated. Or maybe he has suddenly gained a vantage point on the “inner workings of the Mueller investigation” that he did not have before Whitaker’s appointment.
In this hour of peril for our democracy, it is imperative that Congress rush to the ramparts. But Senate Majority Leader Mitch McConnell (R-Ky.) refuses to move legislation that would protect Mueller. Sen. Jeff Flake (R-Ariz.) has belatedly said he would refuse to support judicial confirmations until that legislation is brought to the floor, but his threat will not be effective unless he is joined by at least one other Republican. Sen. Lindsey O. Graham (R-S.C.) actually introduced legislation to protect Mueller, but now he doesn’t see the need for it and even says Whitaker doesn’t need to recuse himself.
We are seeing a slow-motion Saturday Night Massacre, and the lack of pushback from Congress, so far, gives Trump a green light to continue his assault on the rule of law. Every day that Whitaker remains in office is a day that our democracy is being undermined.