I had the privilege of drafting the special counsel rules 20 years ago, when I was at the Justice Department. Recall the setting: The independent counsel statute was expiring in June 1999, and there was a robust debate about what should take its place. After the multitude of investigations of the Clinton administration, many in Washington clamored for renewal of the supercharged independent prosecutor in the act. Others, seeing what they believed were abuses by then-independent counsel Ken Starr (and prior independent counsel Lawrence Walsh, who oversaw the earlier Iran-contra investigation of the Reagan administration more than a decade before Starr), believed that something more accountable and less independent had to be created instead.
My Justice Department colleagues and I, along with a bipartisan group on Capitol Hill, worked through many possible scenarios before we settled on the rules that now govern Mueller’s investigation. Everyone in the debate recognized that any enhancement in the special counsel’s accountability had to come from additional supervision by the attorney general. After all, the power to supervise is the power to destroy. The attorney general can stop a special counsel from investigating altogether or stop them from taking a specific step (such as subpoenaing a president). He can read every file of the counsel, and he may even attempt to give information about the investigation to the president in real time. And he plays a crucial role in determining what report by Mueller, if any, is given to Congress and ultimately the public.
But no one — and I mean no one — ever thought the regulations we wrote would permit the president to install some staff member of his choice from the Justice Department to serve as acting attorney general and thereby oversee the special counsel. Such a proposal would have been laughed off Capitol Hill within a nanosecond as fundamentally at odds with the most cardinal principle that no one is above the law.
It simply cannot be that the president can name his own temporary attorney general to supervise an investigation in which he and his family have a direct, concrete interest. The Constitution itself underscores this — even assuming Trump’s defenders are right that under the Appointments Clause, an acting attorney general doesn’t always need to be Senate-confirmed. Ordinarily, “Principal Officers,” which Cabinet secretaries undoubtedly are, must have Senate confirmation under Article II of our Constitution. The most eloquent defenders of Trump’s action say that Whitaker is serving in a temporary capacity, as an inferior officer, and therefore he can serve without confirmation. But they cite precedents that do not apply, because they concern emergency situations in which no one else has been confirmed by the Senate in the line of succession. In this case, the Senate has confirmed two officials who could continue to oversee Mueller: Deputy Attorney General Rod J. Rosenstein, who has been supervising the case ever since former attorney general Jeff Sessions recused himself, and Solicitor General Noel Francisco. Notably, Congress’s succession statute for the Justice Department lists those people as next in line, not a handpicked mere staff member from the bowels of the department.
But even if the defenders’ claims were true, all that would mean is that Whitaker is an inferior officer who doesn’t need to be confirmed by the Senate. In that situation, someone else, a principal officer, would still need to be in place to supervise Mueller — who is also an inferior officer. That responsibility would fall once again to Rosenstein under the succession statute Congress authorized.
Sometimes, an inferior officer has to supervise other inferior officers with no principal — say, if no one else has been confirmed at the start of an administration. Or in a more hypothetical scenario, imagine a military conflict in which casualties meant there were no Senate-confirmed officials in a department. But fortunately, today’s Justice Department isn’t dealing with challenges anything like those. There are Senate-confirmed officials at the helm.
And regardless of those issues, there is yet another problem, specific to the Mueller investigation. In an emergency situation where an acting head is named, the president is, ultimately, the responsible official who supervises temporary, unconfirmed stand-ins. The idea is that there would at least be someone accountable to the public above the acting officer in those situations — and as Harry Truman put it, the buck always stops with the president.
Here, though, the idea that the president could be trusted to supervise Whitaker as he oversees Mueller’s work is absurd. The potential for self-dealing, not selfless sacrifice, is rampant. Trump could secretly order Whitaker to do his bidding and terminate an investigation of his or his family’s wrongdoing, and Whitaker would take the blame for it. Trump could shield his actions from public scrutiny, and Whitaker, who depends entirely on the president’s support for his job and later advancement, would have no standing to complain. This is fundamentally at odds with the core principle of American law, going back to the early 1600s, that no one can be a judge in their own case.
The problems don’t end there. Because even if you think that Trump could surmount that obstacle and supervise an investigation of himself, it cannot be that he can install the compromised Whitaker to the task. Justice Department ethics rules forbid someone from participating in a criminal investigation if they have “a personal or political relationship” with “any person … which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation.” That fits this case to a T. Whitaker indeed campaigned for the job, first on TV, and then reportedly with the White House privately, casting aspersions on the Mueller investigation, even saying “the truth is there was no collusion with the Russians and the Trump campaign,” writing an op-ed called “Mueller’s investigation of Trump is going too far” and insinuating that he was part of Trump’s team. He evidently even interviewed for a job to defend Trump against Mueller. And Whitaker ran a past political campaign by Sam Clovis, a Trump confidant who has been subpoenaed by the grand jury as part of the Russia inquiry.
Given all of that, it is no wonder that Trump has told people that Whitaker would be “loyal.”
In some cases, Justice Department leaders can supervise investigations despite having personal knowledge about the entities involved. After all, the president nominates every senior official there, so relationships will often exist. But there is a big difference between those garden-variety cases and this one. The department’s ethics rules define a “personal relationship” as “a close and substantial connection of the type normally viewed as likely to induce partiality.” And it’s here where the temporary nature of Whitaker’s appointment boomerangs. Like Supreme Court decisions that are tickets “good for one day only,” when an appointment is made for only one reason, it looks more suspect. That suspicion is exacerbated further because Whitaker has not been confirmed by the Senate. No independent body has signed off on his ethics or his integrity — and bypassing the Senate makes his appointment appear to be an attempt to put a Trump lackey in charge of the investigation. And finally, the ethics rules ask whether a substitute official can be found easily. In this situation, two can step in. One, in fact, is already acting as attorney general for the purposes of Mueller’s investigation — yet another reason it looks as though Whitaker has been installed simply to change the way the special counsel’s work is handled.
Our founders recognized that “men were not angels” and that checks and balances in government were critical to avoid threats to the rule of law. The Whitaker installation does violence to our most basic principles — enshrined in the Constitution, laws enacted by Congress, the ethics rules that govern our prosecutors and the special counsel regulations themselves.
It is lawless and unprincipled.