More substantively, this is one step worse than Trump picking a Supreme Court justice (Brett M. Kavanaugh) to rule on cases affecting him. Here, he’s in essence picking the overseer of an investigation into him and his cronies. Ethics guru Norman L. Eisen tells me, “If ever there was an appearance of impropriety, this is it. . . . We have a criminal subject president appointing his own prosecutor — one who has evidently prejudged the case.” He comments, “This stinks to high heavens. No prosecutor — or indeed governmental official of any kind — should work on a matter under these circumstances. Whitaker must step aside. This is just as odious, in its own way, as Sessions’s conflict was, maybe more so.”
Democrats are already raising many of the same concerns. “I am deeply concerned that President Trump, both in forcing Attorney General Sessions’s resignation, and effectively stripping Deputy Attorney General Rod Rosenstein of his authority to supervise the Mueller investigation, is now in position to easily interfere with or even end the Mueller investigation,” said Sen. Christopher A. Coons (D-Del.), a member of the Senate Judiciary Committee. “That is a red line which President Trump has been warned not to cross by Republicans and Democrats alike for months.”
Coons continued, “The president and Mr. Whitaker must demonstrate that the Mueller investigation will continue under its current leadership and supervision unimpeded. Given his previous comments about the investigation, Mr. Whitaker should recuse himself from oversight of the special counsel investigation during his tenure as acting attorney general.”
He warned that attempts to muzzle or influence the special counsel would amount to “an historic attack on the rule of law, and the beginning of a crisis the likes of which we have not seen since Watergate.” He urged passage of legislation to protect the special counsel.
Rep. Elijah E. Cummings (D-Md.), who will chair the House Oversight Committee, was blunt. “Congress must now investigate the real reason for this termination, confirm that Acting Attorney General Matthew Whitaker is recused from all aspects of the Special Counsel’s probe, and ensure that the Department of Justice safeguards the integrity of the Mueller investigation,” he said in a written statement.
Democrats in Congress (let’s stop expecting Republicans to behave responsibly) should act decisively. Constitutional scholar Laurence Tribe counsels, “This rule-of-law crisis has been a slow-motion train wreck for a long time. Matt Whitaker is on record about the ways to clip Mueller’s wings and the alleged need to do so. And I suspect that too few ordinary people will care that this Wednesday afternoon massacre has quietly taken place.”
There is good reason, then, for Democrats to demand immediate hearings and to demand that any ruling on the matter by DOJ ethics counsel be released forthwith.