President Trump doesn’t exactly have a great track record when it comes to high-profile appointments — remember Ronny L. Jackson? — and the hasty installation of Matthew G. Whitaker as acting attorney general looks like it ranks up there.
Ever since Whitaker was tapped to replace ousted Attorney General Jeff Sessions on Wednesday, red flags have been popping up. And in nearly every major facet of Sessions’s removal and Whitaker’s appointment — the legality of it, the appearance of it, the prosecution of it and Whitaker’s background — those red flags are significant.
The first issue was the timing. Doing this the day after the midterm elections pretty much erased any doubt that this was delayed for political reasons and then done as quickly as possible. Sessions reportedly wanted to stay on until Friday, but White House Chief of Staff John F. Kelly told him no.
Why was that? It’s important to point out that the Justice Department tries not to do anything publicly in the weeks before an election, which is why special counsel Robert S. Mueller III has been quiet. But that leaves open the possibility that notable actions have been on hold, and Friday is usually the day indictments are revealed. It’s not illogical to think Trump wanted Whitaker to take oversight of the Russia probe before potential indictments of Roger Stone and even Donald Trump Jr. were handed down — or something else.
All of which is speculative. But it’s not at all difficult to paint Whitaker as a stooge for Trump in the Justice Department — or at least someone Trump had to know sided with him on substantial, Russia-related matters. Thanks to his brief career as a pundit, Whitaker has taken Trump’s side on many aspects of the Russia investigation. He even appeared to absolve Trump Jr. of any wrongdoing for the Trump Tower meeting — “You would always take that meeting,” Whitaker told CNN last year — and mused about someone in the position where he now finds himself defunding Mueller’s probe. At one point, Whitaker even seemed to suggest Russia hadn’t interfered at all — a stance at odds with the consensus of the U.S. intelligence community but one that was possibly music to Trump’s ears.
Whitaker’s commentary might as well be that of Rep. Devin Nunes (R-Calif.) and Trump’s House Republican allies; it’s not what you’d expect from someone set to make massively consequential decisions about Mueller’s probe. Whitaker made these pronouncements without knowing what kind of evidence Mueller has, which is called prejudging a case, but he has no intention of recusing himself as Sessions did. Even if he can neutrally oversee the Russia investigation from here on out, the mere appearance of prejudgment is problematic. We’d never know whether Trump Jr. would have been indicted without Whitaker as acting AG, but that question will linger. We’ll never really know.
Whitaker’s commentary, though, isn’t the only issue with his background. So, too, is his work on the board of an invention assistance company, World Patent Marketing, that the Federal Trade Commission has labeled a “scam.” Here’s The Post’s Carol D. Leonnig, Rosalind S. Helderman and Robert O’Harrow Jr.:
Whatever the concept, no matter how banal or improbable, investigators found, the salesperson would pronounce the idea fantastic and encourage the customer to pay for a package to market and patent the idea, documents show.
Many people ended up in debt or lost their life savings, according to the FTC.
Whitaker has never personally been accused of wrongdoing, nor has the company admitted any; a settlement didn’t require it to do so. But these are all issues that would be of significant interest in a confirmation hearing. Because of Trump’s maneuver and Whitaker’s “acting” status — which could allow him to serve more than 200 days — we’ll never get a thorough public vetting of the man leading the Justice Department.
Which brings us to the next problem: whether this appointment is even legal. George Conway (husband of White House adviser Kellyanne Conway) and former solicitor general Neal Katyal argued Thursday in the New York Times that it’s not. They argue, compellingly, that the Constitution explicitly requires principal officers of the U.S. government — that is, those who have no superior except the president — to be confirmed:
A principal officer must be confirmed by the Senate. And that has a very significant consequence today.
It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.
In times of crisis, interim appointments need to be made. Cabinet officials die, and wars and other tragic events occur. It is very difficult to see how the current situation comports with those situations. And even if it did, there are officials readily at hand, including the deputy attorney general and the solicitor general, who were nominated by Mr. Trump and confirmed by the Senate. Either could step in as acting attorney general, both constitutionally and statutorily.
Toss that on top of the appearance problems, the background problems and the timing problems, and Whitaker’s appointment runs the gamut. Which made it interesting Friday morning when Trump seemed to distance himself from Whitaker.
“I don’t know Matt Whitaker,” Trump said, when asked whether he had talked to Whitaker about Mueller’s investigation. “Matt Whitaker worked for Jeff Sessions, and he was always extremely highly thought of, and still is.”
It’s not true that Trump doesn’t know Whitaker. He has reportedly been present for several Oval Office meetings with Trump, alongside Sessions. But more important, why is Trump distancing himself? The most probable explanation is that he doesn’t want it to look as if he put his guy in a position to influence the investigation into his own campaign. But it also seems possible Trump sees the growing questions about Whitaker’s background and wants to make sure they don’t come back to bite him. At the least, it would seem to bode poorly for Whitaker’s chances at getting the job full time.
The whole thing raises many questions — almost every aspect of it, in fact — and Trump doesn’t have good answers.