On Thursday, two people close to Whitaker said he does not plan to take himself off the Russia case. They also said he is deeply skeptical of any effort to force the president’s testimony through a subpoena.
Special counsel Robert S. Mueller III has been negotiating for months with Trump’s attorneys over the terms of a possible interview of the president. Central to those discussions has been the idea that Mueller could, if negotiations failed, subpoena the president. If Whitaker were to take the threat of a subpoena off the table, that could alter the equilibrium between the two sides and significantly reduce the chances that the president ever sits for an interview.
At the Justice Department, ethics officials typically review the past work of senior leaders to see whether they have any financial or personal conflicts that would preclude them from overseeing particular cases.
In the past, senior Justice Department officials have tended to follow such advice, but they are rarely required to do so, according to officials familiar with the process.
“The consistent tradition, through administrations of both political parties, has been for DOJ’s senior leaders to consult career ethics officials on questions of recusal,” said Matthew Axelrod, a senior department official during the Obama administration. “Here, to avoid irreparable damage to the institution’s integrity, it is crucial that the normal process be followed.”
A Justice Department spokeswoman declined to comment. Officials there have said Whitaker will follow the regular procedure in handling any ethics issues that arise.
On Thursday evening, Democratic attorneys general for 17 states and the District wrote to Whitaker urging him to recuse himself from the Russia probe.
“As chief law enforcement officers of our respective states, we ask that you recuse yourself from any role in overseeing Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election,” the Democratic attorneys general wrote. “Because a reasonable person could question your impartiality in the matter, your recusal is necessary to maintain public trust in the integrity of the investigation and to protect the essential and longstanding independence of the Department you have been chosen to lead, on an acting basis.”
In 2014, Whitaker chaired the campaign of Sam Clovis, a Republican candidate for Iowa state treasurer. Clovis went on to work as a Trump campaign adviser and has become a witness in the investigation by Mueller.
The Justice Department advises employees that “generally, an employee should seek advice from an ethics official before participating in any matter in which her impartiality could be questioned.” Regulations prohibit employees, “without written authorization, from participating in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.”
Clovis said Wednesday that Whitaker is a friend and that he texted congratulations to Whitaker on Wednesday after he became attorney general. The question for ethics officials, if they are asked, would be whether Clovis would be considered “substantially involved” in the conduct Mueller is investigating.
On the issue of his opinion columns, Whitaker could argue that he took positions before he knew the full factual and legal circumstances of the case and therefore there is no need for recusal. It is possible ethics officials could still advise him that his commentary created the appearance of a conflict of interest but leave the decision to him. If they recommended forcefully that he recuse himself and he declined, Whitaker could then be referred to the Justice Department’s Office of Professional Responsibility, and his license to practice law could be put at issue.
The White House is unconcerned about Whitaker’s previous comments, a senior White House official said. He was at the White House on Thursday afternoon for a meeting on immigration.
Trump is aware that Whitaker has been critical of the Russia probe, this official said, adding that Whitaker’s comments align with the president’s position.
It is unlikely that Whitaker will get the job permanently, this official said.
Whitaker’s elevation to become the nation’s top law enforcement official followed the ouster Wednesday of Jeff Sessions as attorney general. Sessions had endured months of public abuse from Trump, who soured on Sessions because he recused himself from oversight of the Russia investigation shortly after he arrived at the Justice Department.
Sessions felt that Mueller’s investigation had gone on too long but also believed it was important that he stay on as attorney general as a means of protecting the special counsel’s work, so that when it concluded, the public would have confidence it had not been manipulated, according to a person familiar with Sessions’s thinking.
Even after he arrived at the Justice Department, Whitaker harbored frustration about the length of the special-counsel probe and doubts about the scope of Mueller’s authority, a person familiar with the matter said. He questioned Deputy Attorney General Rod J. Rosenstein’s ability to give Mueller such wide latitude and wanted to explore the bounds of what Mueller was examining, though Rosenstein kept Sessions’s office “walled off” from the matter, this person said. Whitaker did, however, believe that Sessions had no choice but to recuse himself from the matter, the person said.
Rosenstein and Whitaker have come to eye each other warily in recent months, people familiar with the matter said. When Rosenstein was nearly ousted from his post over reports that he had suggested surreptitiously recording the president, Whitaker was tapped to take over Rosenstein’s position. But after a visit to the White House, Rosenstein stayed in his job, leaving people across the Justice Department — Whitaker included — mystified as to what happened, these people said.
Rosenstein and Whitaker both were present at the investiture of Supreme Court Justice Brett M. Kavanaugh on Thursday — Whitaker dressed in a “morning suit,” which included formal trousers, a vest and a long coat, people familiar with the matter said.
While Whitaker is now Mueller’s ultimate supervisor, it was not immediately clear whether that meant Rosenstein would step aside. Justice Department officials said that under normal circumstances, the deputy attorney general would probably play an active, hands-on role in overseeing such a high-profile probe and that they had no reason to believe Rosenstein would now be cut out.
Whitaker was virtually unknown to Sessions before becoming his chief of staff, though Federalist Society Executive President Leonard Leo had been touting the former U.S. attorney from Iowa as early as the transition, according to a person familiar with the matter. Leo had come to know Whitaker because both were prominent in conservative legal circles and he considered Whitaker a true conservative and talented manager, this person said.
Initially, Sessions chose Jody Hunt, a longtime Justice Department official, to be the top aide in his office, while Whitaker made a name for himself in Washington via TV appearances and his work with the conservative Foundation for Accountability and Civic Trust.
While liked by Sessions, Hunt clashed with Danielle Cutrona, another aide in the attorney general’s office, in such a way that those around Sessions came to feel one or the other would have to move on, according to people familiar with the matter. Early in the administration, Hunt was offered a more prestigious position — running the Justice Department’s civil division. Leo then recommended Whitaker to Cutrona, in part hoping he might help improve the Justice Department’s relationship with the White House, and Cutrona passed on the recommendation to Sessions, the people said.
A Justice Department spokeswoman, speaking for Hunt and Cutrona, disputed that Hunt left as chief of staff because of Cutrona and that Whitaker’s coming on board was tied directly to Hunt’s departure.
“Both parties involved in your story deny this happened,” the spokeswoman said.
Sessions brought Whitaker in for an interview and came to like him, people familiar with the matter said.
As chief of staff, Whitaker was a hard-charging aide, imposing on the Justice Department his personal philosophy of starting with the end in mind, according to those who have worked with him. His style rubbed many the wrong way, and at times Justice Department officials pushed back on his demands. Department officials said his taking over the top job from his boss was, at the very least, awkward, because chiefs of staff typically leave with the attorney general.
Trump many weeks ago talked with Whitaker about replacing Sessions as the attorney general, and Sessions was surprised when the discussion was reported in The Washington Post and felt it left his relationship with Whitaker bruised, a person familiar with the matter said.
On Wednesday evening, Sessions gathered dozens of top Justice Department officials in the attorney general’s conference room, according to a person familiar with the matter. He talked about loving the job and framed his removal as something that happens to every attorney general, the person said. He also said he thought Whitaker would carry the torch, the person said.
In a note sent to the Justice Department staff on Thursday, Sessions wrote, “No matter what your role at the Department and no matter what your task, I hope that you will remember that you are helping us in our mission to protect the American people and the rights we hold dear.”
Sari Horwitz contributed to this report.