Matthew G. Whitaker attends a roundtable discussion with foreign liaison officers in August at the Justice Department in Washington. (photo: Allison Shelley/Reuters)
09 November 18
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serious is the forced resignation of Jeff Sessions and the installation
of his chief of staff, Matthew G. Whitaker, as acting attorney general?
And what does it portend for the Mueller probe and related
investigations?
The first question is easy: It is as
serious as a heart attack. Whitaker’s appointment, which President Trump
effectuated before all of the midterm election results were even final,
immediately divested Deputy Attorney General Rod J. Rosenstein of his
oversight authority of special counsel Robert S. Mueller III’s
investigation.
Rosenstein had bent occasionally in
response to the gale-strength pressures on him from the White House, but
had never broken, performing a tremendous service to the department and
the country in safeguarding the integrity of Mueller’s work.
Whitaker, it is clear, is a far less
trustworthy guardian. Indeed, he already expressed opposition to the
Mueller probe in an 2017 op-ed for CNN, in which he wrote:
“Mueller has come up to a red line in the Russia 2016 election-meddling
investigation that he is dangerously close to crossing.”
And The Post previously reported
that in an 2017 CNN interview, Whitaker speculated about a scenario in
which a new attorney general doesn’t fire Mueller but instead “reduces
his budget to so low that his investigation grinds to almost a halt.”
That scenario is now a real — and chilling — prospect.
Moreover, Whitaker is a fundamentally political actor. He co-chaired
Rick Perry’s 2012 presidential campaign and ran unsuccessfully as a
Republican for the Senate in 2014 as well as state treasurer in Iowa in
2002. That’s a significant and foreboding fact in this setting. It’s not
hard to envision that in some general way, he will have Trump’s back,
even though it would be a stark dereliction of duty.
Other potential Sessions
replacements, such as former associate attorney general Rachel Brand or
Solicitor General Noel Francisco, belong to a professional class of D.C.
lawyers with high institutional regard for the Justice Department and a
reluctance to throw bombs. But Whitaker’s radical credentials could be a
political boon for the president.
And on the topic of radical bomb-throwers, Whitaker has characterized Marbury v. Madison,
the Promethean foundation of judicial review in the United States and
probably the most important judicial decision ever rendered, as one of
the worst decisions in the Supreme Court’s history. His critique was
that “the courts are supposed to be the inferior branch of our three
branches of government” whereas Marbury established the court as
the final arbiter of constitutional issues. He similarly trashed “all
New Deal cases that were expansive of the federal government.” These
views are a stunning and deeply inappropriate set of opinions for the
nation’s chief law enforcement officer.
So what havoc could Whitaker wreak
on the Mueller probe and related cases that Mueller already has parceled
out to other prosecutors, such as the Michael Cohen probe?
It’s a safe bet that he will not
seek to fire Mueller or bring the investigation to an immediate close. A
former U.S. attorney, Whitaker understands that Mueller is the gold
standard and that smothering the investigation would be a political
nonstarter.
Moreover, unless he tries to replace the governing
regulations, he can remove Mueller only for good cause, an impossible
standard to satisfy in Mueller’s case.
But that leaves a long list of
possible mischief that could cripple the probe. First, Whitaker has now
assumed immediate control over Mueller’s budget and personnel matters.
Second, he has authority to disapprove of requests to change or expand
the probe’s jurisdiction.
Third, the regulations state that
Mueller is not subject to the day-to-day supervision of the attorney
general or anyone else in the Justice Department, but they permit the
attorney general to request that Mueller provide an explanation for any
investigate step. The attorney general can then halt such a step if he
concludes that it is inappropriate or unwarranted under departmental
practices. Properly read, that’s a narrow standard; but as a practical
matter it will be Whitaker’s call how to read it.
Finally, Whitaker now assumes great
power over any report Mueller produces, and it has been widely assumed
that Mueller’s obstruction report would be ready not long after the
midterms. He can decide whether the report’s release — which Team Trump
has already indicated it would fight — would be “in the public
interest.” Whitaker probably couldn’t bottle up or bury the report
indefinitely, but he might be able to suppress it long enough to blunt
serious political fallout for the president.
And of course, as acting attorney
general, Whitaker now becomes the ultimate boss over the prosecutors in
the Southern District of New York and the Justice Department’s National
Security Division, where cases loosely related to the Mueller probe have
been brought. Those assignments were a prudent divestiture to insulate
the cases from any direct attack on Mueller himself, but Whitaker has
even more direct authority over them than over Mueller himself.
In short, Trump has made his
post-midterm move to bring the Mueller investigation under control, and
it’s a broad one. The threat to Mueller’s ability to complete a
comprehensive investigation is material and might yet be mortal.
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