Matthew Whitaker was previous Jeff Sessions’ chief of staff. Sessions submitted his resignation on Wednesday, one day after the 2018 midterm elections. USA TODAY
WASHINGTON — Two former attorneys general are questioning the propriety of Matthew Whitaker’s appointment as acting attorney general, suggesting that President Donald Trump may have skirted established rules of succession to install the former Iowa federal prosecutor.
In interviews with USA TODAY, Michael Mukasey and Alberto Gonzales, who both served in the George W. Bush administration, aligned themselves Friday with a contingent of legal analysts who assert that the post should have been filled by a Justice Department official who has been confirmed by the Senate.
“Even Richard Nixon didn’t put in somebody as acting attorney general who had not been confirmed,” Mukasey said, referring to the so-called Saturday Night Massacre, when Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned after defying Nixon’s order to fire special Watergate prosecutor Archibold Cox. Solicitor General Robert Bork ultimately agreed to carry out Nixon’s order.
“The successor needs to be a confirmed person in my view,” Mukasey said.
Gonzales said questions over Whitaker’s authority will likely have to be resolved in court.
“I don’t think the (Trump) administration did the Justice Department any favors” by installing Whitaker. “Beyond the legal questions, I don’t think it was a good idea.”
Whitaker, who had been serving as chief of staff to Attorney General Jeff Sessions, was appointed to the interim position Wednesday following the ouster of Sessions.
While Sessions’ departure was long-expected because of a fractured relationship with the White House, Whitaker’s installation has drawn increasing scrutiny both because his position is not subject to Senate confirmation and for his past public statements questioning the legitimacy of the ongoing inquiry into Russia’s interference in the 2016 election.
Whitaker, in his new interim role as the chief law enforcement officer in the country, now has oversight of the Russia inquiry headed by Justice special counsel Robert Mueller. Until Whitaker’s appointment, the Mueller investigation was being managed by Deputy Attorney General Rod Rosenstein.
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The duty fell to Rosenstein last year after Sessions recused himself because of his work for the Trump campaign.
The Justice Department Friday maintained that Whitaker’s appointment was appropriate.
Questions about Whitaker’s authority, however, began emerging immediately after his elevation was announced in a tweet by the president.
Before joining the department last year, Whitaker had been a vocal surrogate for Trump while variously calling for Justice to limit the scope of the Mueller investigation. The past criticism, including his suggestion that Justice could choke off funding for the probe, prompted concerns from Democrats and some Republican lawmakers who have since thrown threw support behind proposed legislation to shield the special counsel.
At the same time, legal analysts – including Neal Katyal, an acting solicitor general in the Obama administration, and George Conway, spouse of White House adviser Kellyanne Conway – seized on Whitaker’s appointment as bypassing the Senate confirmation processed required of Cabinet officials.
“Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and the ability to evenhandedly enforce the law in a position of such grave responsibility,” Katyal and Conway wrote in a New York Times column.
“The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation.”
Ironically, one of the most recent leadership shuffles at Justice occurred during the early days of the Trump administration, when then acting Attorney General Sally Yates, a Senate-confirmed holdover from the Obama administration, was fired by Trump for refusing to defend the president’s travel ban.
The post was filled by Dana Boente, a confirmed U.S. attorney for the Eastern District of Virginia.
Should he recuse?
Mukasey and Gonzales, who both questioned Whitaker’s standing as a non-confirmed appointee, disagreed over whether the acting attorney general should recuse himself from overseeing the Mueller inquiry.
“I don’t think he should recuse,” Mukasey said. “These are past statements. The question is whether he is suited for the job.”
Gonzales, who faced his own political storm over the firing of nine U.S. attorneys in a dispute that triggered his resignation, said Whitaker’s past statements potentially create the “appearance of bias” in the Mueller investigation.
“Any appearance of bias hurts the department,” he said. “If it were me, I would step away,” Gonzales said.
Trump, meanwhile, sent mixed signals on Whitaker Friday.
Before departing to France to commemorate the 100th anniversary of the end of World War I, Trump claimed not to know his new Justice chief.
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“I don’t know Matt Whitaker,” Trump said in his first public remarks since the appointment. “Matt Whitaker has a great reputation, and that’s what I wanted.”
Trump’s remarks directly contradicted comments he made a month ago when he heaped praise on Whitaker.
“I can tell you Matt Whitaker’s a great guy,” Trump said in an interview with Fox News. “I mean, I know Matt Whitaker.”
Trump claimed Friday that he had no contact with Whitaker regarding the Russia investigation, which the president has repeatedly derided as a “witch-hunt.”
“I didn’t speak to Matt Whitaker about it,” Trump told reporters on the White House lawn.
“When Sessions left, what I did, very simply, is take a man who worked for Sessions,” the president said. “He’s a highly respected man, especially by law enforcement. And I think he’s going to do a great job.”
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