Justice Department employees and ordinary Americans concerned about the preservation of our constitutional system have a quandary: Stay with the devil they know at the Justice Department or go with the devil they don’t.
Acting attorney general Matthew G. Whitaker, we can confidently say, would never have been nominated or hired as a junior Justice Department attorney in any other administration. He not only lacks the experience for the job but also has a host of disqualifying attributes.
Matthew Whitaker, the acting U.S. attorney general, has incorrectly claimed on his résumé and in government documents to have been named an Academic All-American while playing football at the University of Iowa, according to the documents and the organization that awards that honor.
Mr. Whitaker, who was a tight end on the Iowa team from 1990 to 1992, claimed to have been an Academic All-American in his biography on his former law firm’s website and on a résumé sent in 2014 to the chief executive of a now-closed patent-marketing firm, for which he sat on the advisory board. The résumé was included in documents released last month by the Federal Trade Commission.
This is résumé fraud plain and simple.
It comes on top of reports that Whitaker as practicing attorney “had much more involvement in an invention-promotion company shut down in 2017 by federal regulators than has been previously known. . . . Mr. Whitaker served on the company’s advisory board beginning in October 2014. The internal documents show that beginning in 2015, he received more than a dozen emails and calls from people complaining about the company.” The report suggests he was guilty of inattentive lawyering, if not willful indifference. (He had an obligation to investigate and report wrongdoing by underlings to the authorities.)
Coupled with Whitaker’s extreme views on the impropriety of an investigation into a president’s possible collusion with a foreign power and obstruction of justice (he thinks neither is legitimate), it is fair to say no conscientious hiring manager at the Justice Department would have seriously considered him for a much more junior post, let alone attorney general.
Well, at least esteemed lawyer William P. Barr — President Trump’s nominee for attorney general — is on the way, right? Unfortunately, his possible arrival isn’t necessarily cause for celebration either.
Daniel Hemel and Eric Posner opined recently on Barr’s now infamous memo:
In an unsolicited memorandum sent to top Justice Department officials this past June, William Barr — who served as attorney general under President George H.W. Bush and is now President Trump’s nominee for that post again — argued that the special counsel, Robert Mueller, should not be allowed to demand answers from the president about possible obstruction of justice. Mr. Barr’s memo, which became public this week, seriously damages his credibility and raises questions about his fitness for the Justice Department’s top position. ...
Barr [argues] that the president can obstruct justice only by “evidence impairment,” which seems to mean shredding documents or threatening witnesses and the like. Firing the F.B.I. director for failing to act on the same evidence is apparently O.K. But this argument does not bear scrutiny.
Barr offers — out of whole cloth — the theory that a president cannot be in violation of the obstruction statute because “statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.” Under Barr’s theory, then, Trump could accept a bribe for his actions — or murder someone for that matter — since the laws against bribery and murder don’t mention the president.
In sum, Barr’s theory is wrong — and frankly unserious. Perhaps Barr will recant such views at his confirmation hearing and reassert the essential principle that no one, even the president, is above the law. If not, and if he doesn’t pledge to allow special counsel Robert S. Mueller III to complete his investigation without hindrance and report immediately untoward attempts by the administration to pressure Mueller to go easy on Trump’s friends and family, the Senate should not confirm him — and should insist Whitaker depart as well.
We have Deputy Attorney General Rod J. Rosenstein, whom the Senate has confirmed. He is in the chain of command and is entirely qualified to serve as acting attorney general until Trump nominates someone who passes ethical muster, does not harbor crackpot theories of presidential power, and has the requisite experience and independence to perform the job. If no one matching that description wants to serve in a floundering, scandal-plagued administration — a distinct possibility — Rosenstein can serve for the duration of Trump’s term.