Reports indicate that President Trump is deep into the search for a new attorney general nominee — I made my case for former federal judge and Boeing General Counsel J. Michael Luttig last month — and there’s great reason to be quick in the decision-making. The appointment of acting attorney general Matthew G. Whitaker strikes many as possibly unconstitutional and even more as an utterly unnecessary self-inflicted political wound by the president. The conclusion that there was in fact no collusion between Trump, his campaign and Russia in 2016 was widespread and growing stronger when Attorney General Jeff Sessions was fired last week. Sessions’s dismissal was expected. A “regular order” acting attorney general would have avoided igniting conspiracy theories. Replacing Whitaker quickly could still douse those that have been lit.
The Post’s Bob Woodward came on my radio show two months ago. I asked: “Did you, Bob Woodward, hear anything in your research in your interviews that sounded like espionage or collusion?” Woodward responded: “I did not, and of course, I looked for it, looked for it hard.”
Which is my conclusion and the apparent conclusion of Democratic strategists across the country, as few if any Democrats ran midterm campaigns featuring allegations of collusion. Whatever special counsel Robert S. Mueller III has found will come out, but if Woodward didn’t find collusion, then no one else has outside of Mueller’s office — and it would be unprecedented for such an explosive fact to stay contained inside one office inside the Beltway.
So I and many others aren’t buying the “Whitaker was appointed to shut down Mueller” commentary. If the president had wanted to avoid testifying before the grand jury, he could have simply directed Deputy Attorney General Rod J. Rosenstein to direct Mueller not to subpoena him. Trump hasn’t. There is no indication that Whitaker will be dispatching orders to Mueller either. The best bet is that a wrap-up is coming quickly and will follow its ordinary course: A report to Congress. If the president was planning a confrontation with Mueller over the constitutional reach of his office, he’d have sent in a heavyweight to begin with, not his former attorney general’s chief of staff.
Whitaker’s potentially problematic appointment could have been avoided by dispatching to Justice’s fifth floor, for instance, Director of National Intelligence Daniel Coats, Health and Human Services Secretary Alex Azar or Labor Secretary Alexander Acosta as acting attorney general under the 1998 Federal Vacancies Reform Act, and there would have been no doubt of their legitimacy under the Constitution. No action they would take would be subject to challenge in the courts as premised on an unlawful appointment. It would have been the common-sense thing to do. It’s just not a good bet to risk such after-the-fact challenges to Whitaker’s actions based on his not having passed over the hurdle of the Senate’s constitutional “advice and consent” power. So why did the president do it?
Occam’s razor please: The president wanted Sessions gone, and with the White House without a counsel — Donald McGahn departed and incoming counsel Pat Cipollone not ensconced, the lawyer staff dwindling and no one with constitutional chops at hand to say “Whoa!” — the president said something like, “Just put Whitaker in charge. Good guy. We will get a new AG when I get back from Europe.” Keep in mind the Senate stayed under Republican control and, whatever the results in Arizona and Florida, is going to be more conservative and Trump-friendly in the new year. The president is going to get his new attorney general.
Indeed, buzz and conversations between senators whom the president trusts about the next attorney general have been widely reported and confirmed at least by Sen. Lindsey O. Graham (R-S.C). The nominee is coming quickly.
So just keep in mind that what looks like a perfectly acceptable interim for a month or so to a non-lawyer, indeed even to lawyers who are not constitutional experts, could have just been an unforced error, not an elaborate plot to “stop Mueller.” But there were much better options for acting attorney general, and perhaps the president will adopt one of them this week.
The best option is nomination of an experienced, capable, widely admired and very tough veteran of the department. See above. Meanwhile, getting a new interim chief who is unquestionably qualified under the vacancies act and the Constitution, having previously been confirmed to a Cabinet-level appointment, is the smart move that would shut down the charges of Whitaker as Mueller muffler.