Two disturbing incidents involving acting attorney general Matthew G. Whitaker came to light at the end of an already chaotic week. First, it became clear that ethics officers told him to recuse himself from the Russia probe. Second, President Trump, in what appears to be yet another instance of obstruction of justice, leaned on Whitaker to rein in prosecutors in the Southern District of New York.
The Post reports on Whitaker’s ethics dodge:
A senior Justice Department ethics official concluded acting attorney general Matthew G. Whitaker should recuse from overseeing special counsel Robert S. Mueller III’s probe examining President Trump, but advisers to Whitaker recommended the opposite and he has no plans to step aside, people familiar with the matter said. …
Sen. Minority Leader Charles Schumer (D-N.Y.), in a statement, said Whitaker’s refusal to recuse “is an attack on the rule of law and the American justice system, but it is undoubtedly consistent with what President Trump wanted — an unethical yes-man who will do his bidding rather than do what’s right.”
We don’t even know who these “advisers” are — whether they are career officials or political appointees, or what credentials they have. In any event, this conduct is unprecedented, and Whitaker’s continued oversight of the probe will damage his and the Justice Department’s reputations. When the Democratic-majority House takes over in January, you can bet Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) is going to demand answers from Whitaker under oath. (If he refuses to answer, the matter may wind up in court.)
We also learned from CNN about Trump’s seeming attempt to strong-arm Whitaker, just as he did to then-FBI Director James B. Comey regarding Michael Flynn:
President Donald Trump has at least twice in the past few weeks vented to his acting attorney general, angered by federal prosecutors who referenced the President's actions in crimes his former lawyer Michael Cohen pleaded guilty to, according to multiple sources familiar with the matter.
Trump was frustrated, the sources said, that prosecutors Matt Whitaker oversees filed charges that made Trump look bad. None of the sources suggested that the President directed Whitaker to stop the investigation, but rather lashed out at what he felt was an unfair situation.
You’ll recall that when then-Attorney General Loretta Lynch briefly met with former president Bill Clinton to exchange pleasantries on an airport tarmac during the time his wife, Hillary, was under investigation for her emails, the ensuing firestorm compelled Lynch to recuse herself from the investigation. Here, when the president allegedly discussed his own case, the attorney general has been tainted and under no circumstances should be allowed to continue supervision of the matter.
“No president since Nixon would have dared to so overtly violate the Justice Department’s independence,” says Norman Eisen, former White House ethics counsel and now counsel for Citizens for Responsibility and Ethics in Washington. “These revelations are further evidence of the pattern of Trump’s interference with the Justice Department investigations in order to protect himself — and so adds to the already substantial evidence of obstruction as we have explained." He adds, “Whitaker deserves no bouquets because he has not, as far as we know, bent to the president’s evil motive and tried to interfere. Whitaker should have followed the Justice Department’s ethics advice and recused himself so he would not be in this situation, and my watchdog has filed an inspector general complaint about his failure to do so.”
With regard to Trump, this fits Trump’s pattern of pressuring the FBI and attorneys general (first Jeff Sessions, now Whitaker) to slow down the investigation or let up on associates. “I hope people understand just what a red line the president has crossed,” says former Justice Department spokesman Matt Miller. " This is even worse than the pressure he put on Comey. Whitaker is an acting AG whose both current tenure and next job depend entirely on the president’s whims. He is completely beholden to the president, Trump knows it and he’s trying to use that leverage to get an investigation into himself curtailed." Miller continued, “It is a shocking, ongoing act to interfere with an investigation, and it needs to be the first thing Democrats investigate in January.” He adds, “There will be a number of people at DOJ who know about these conversations, and they all need to come testify and produce any related documents.”
Trump with each incident underscores that he considers the Justice Department his own private law firm, and therefore subject to his direction when it comes to investigating his own wrongdoing. In a real sense, this is worse than the smoking gun in Watergate — a tape that recording of President Richard M. Nixon approving a foray to the CIA to rein in the FBI’s investigation of the break-in. Here the president is doing the dirty work directly and attempting, it appears, to actively intervene in an ongoing prosecution.
Constitutional scholar Laurence Tribe bluntly says, “The president is totally out of control.” He explains, “Such brazen efforts to rein in career prosecutors for doing their jobs in a professional way just because their legal filings implicate him in evidently criminal behavior is part of a persistent pattern of obstructing justice.” He acknowledges that “Trump didn’t expressly order Whitaker to override any specific prosecutorial action or to rewrite any particular memo or brief. But that might just reflect this president’s total ignorance of how the legal system works and his disinterest in details.” Tribe argues that for purposes of criminal statutes, it is enough that “Trump sought, for the corrupt purpose of redirecting ongoing investigations and prosecutions to conceal his own involvement, to pressure the acting attorney general to do his bidding rather than to pursue justice.”
And then there is attorney general nominee William P. Barr. His 20-page memo to Deputy Attorney General Rod J. Rosenstein weirdly criticizes special counsel Robert S. Mueller III based on a hypothetical case in which Trump’s only offense was firing Comey. We know now that Comey’s firing is a tiny piece of the portrait of a president bent on influencing witnesses, lying to the press, bullying investigators and attempting to conceal his involvement with Russia during the campaign.
Writing for The Post, former federal prosecutor Harry Litman explains, “Barr seems here to suggest that a president cannot commit a crime or violate the Constitution if he is exercising an enumerated executive power, such as appointment, removal or pardon. To date, I am aware of nobody other than Rudolph W. Giuliani and Alan Dershowitz who have advanced this view.” He argues, “It is a royalist mind-set that cannot be squared with the constitutional text and structure, important decisions of the Supreme Court, and our strongest shared intuitions about unconstitutional conduct (for example, the president’s removal of an official for reasons of rank racial prejudice).”
Given that the president is obviously prone to attempting to obstruct Mueller’s investigation, the Senate must grill Barr as to whether his still holds the view that the president essentially is not required to abide by statutes prohibiting obstruction. More important, the Senate must ask Barr his view of the president’s alleged conversations with Whitaker, whether Whitaker should have recused immediately and what he would do in such circumstances.
The Justice Department is at serious risk of damaging its reputation and lowering the ethical standards that it has maintained for decades. Unless and until the Senate is absolutely certain Barr can fairly and conscientiously oversee the Mueller probe, hold the president to abide by the same laws the rest of us must follow and is willing to report further efforts of obstruction promptly to Congress, he cannot be confirmed.