On Tuesday, voters handed the House to Democrats. On Wednesday, President Trump showed why this kind of check on his untrammeled authority is so imperative — if probably inadequate.
Nearly the first thing the president did after getting the election news — shortly after threatening Democrats and berating the media in a Wednesday morning news conference — was to fire Attorney General Jeff Sessions. Trump then appointed as acting attorney general, not the natural candidate — Deputy Attorney General Rod J. Rosenstein, an apolitical career prosecutor — but, rather, Sessions’s chief of staff, Matthew Whitaker. Why pick Whitaker?
A former U.S. attorney for the Southern District of Iowa and a hulking former football player from the University of Iowa, Whitaker is a backslapping Trumpian true believer. During a revealing 2014 interview, he said, “I have a Christian worldview,” and proceeded to attack abortion rights, same-sex marriage, Obamacare, gun control, “amnesty” for undocumented immigrants, efforts to mitigate climate change, all tax increases, foreign aid to “countries that don’t like us,” the Education Department (“should be disbanded”) and even Marbury v. Madison, the seminal 1803 Supreme Court decision that established judicial review of political decisions.
Whitaker shares his hard-right politics with Sessions. Will he also emulate Sessions’s willingness to allow the investigation of Russian interference in the 2016 presidential election to proceed on its course? Only in the unlikely event that he is willing to eat his words.
As a private legal commentator, Whitaker agreed with Trump when the president concocted an entirely imaginary red line against investigating his suspicious finances. “The President is absolutely correct,” Whitaker wrote in August 2017, claiming that special counsel Robert S. Mueller III “has come up to a red line in the Russia 2016 election-meddling investigation that he is dangerously close to crossing.” Whitaker also retweeted an article by a lawyer who wrote that Trump’s legal team should not “cooperate with Mueller’s lynch mob,” justified the decision by the Trump campaign to meet with a suspected Russian agent (“you would always take the meeting”) and criticized the idea that the president could be charged with obstructing justice (“There is no criminal case to be made on obstruction-of-justice”).
Appearing on CNN in July 2017, shortly before he went to work at the Justice Department, Whitaker argued that Trump should sabotage Mueller’s investigation by having the deputy attorney general cut his budget rather than by simply firing him. Whitaker will now be in a position to carry out his own strategy, unless he recuses himself, because it appears that he has taken over from Rosenstein supervision of the Mueller investigation.
That risks a constitutional crisis — one that Republicans have practically invited by refusing to risk Trump’s ire by standing up for Mueller. The Senate Judiciary Committee actually passed bipartisan legislation that would protect Mueller by giving him the ability to appeal his firing to a panel of judges. An earlier version included a mandate that the Justice Department inform Congress of any change in Mueller’s mandate. But Majority Leader Mitch McConnell (R-Ky.) would not bring the bill to the Senate floor. Comparable legislation in the House did not even advance out of committee. Even Republicans who were critical of Trump refused to use their power — which is considerable, in the case of senators — to force a vote by stalling other legislative priorities, such as judicial confirmations. That is why I shed no tears over the defeat of some moderate House Republicans in the midterm election: They did nothing to create an effective check on Trump.
Of course, even if legislation to protect Mueller had passed, it would not necessarily have protected him from the kind of sneak attack Whitaker can now carry out by reducing the special counsel’s budget and whittling away at his mandate. Mueller can take some steps to protect himself by cooperating with friendly state prosecutors and local federal prosecutors. House Democrats can, in turn, mount their own investigations and subpoena the special counsel’s report, once it is written, to prevent its suppression. But truly effective action to safeguard our embattled rule of law would require bipartisan and bicameral cooperation.
If leading Republicans cared about their oath of office (I know, an implausible assumption) they would join with leading Democrats to pass legislation protecting Mueller’s independence and threaten Whitaker — and Trump — with impeachment should they attempt to impede the investigation in any way. If he brazenly moves to obstruct justice, Trump could hasten his own demise — but only if there are enough Republicans in Congress with the same sense of responsibility displayed by Sen. Barry Goldwater, House Minority Leader John Rhodes and Senate Minority Leader Hugh Scott when they told President Richard M. Nixon on Aug. 7, 1974, that they could no longer support his lies and coverups. Nixon resigned the next day.
It is impossible to imagine such a scene transpiring today. Modern Republicans have placed their faith in Trump over the Constitution. That faith was rewarded for senators, if not House members, with midterm-election gains. Worries that, after the election, Trump would be emboldened to sabotage the Justice Department have sadly been borne out. Now, the question is whether anyone in the Senate majority has the courage to fight for our democracy. I fear the answer to that question.