Matthew Whitaker is President Trump’s selection to replace Jeff Sessions. Whitaker will be the Acting Attorney General.
Whitaker is qualified for the position. He served as Sessions’ chief of staff and, at one time, as a U.S. Attorney.
Like almost anyone Trump might have named to replace Sessions, though, Whitaker has come in for bitter criticism from the Trump haters. They make three main arguments: (1) Whitaker can’t oversee the Mueller investigation because he has publicly expressed skepticism about it, (2) Whitaker is barred from serving as Acting Attorney General because he hasn’t been approved for any position in this administration by Congress, and (3) Whitaker is a political hack who will undermine Mueller in order to serve Trump.
The first argument seems ridiculous to me. Basically, Whitaker has said that the Muelller investigation shouldn’t become a general, sweeping inquiry into Trump’s financial dealings and that if it does, this will amount to a witch hunt.
Whitaker is right, but that’s not the main point. The main point is that, for the reasons set forth by Andy McCarthy, expressing such an opinion does not disqualify Whitaker from overseeing the investigation or make it inappropriate for him to do so.
Another disqualification argument centers around the fact that Whitaker apparently is a friend of Sam Clovis who once managed a Whitaker political campaign. Clovis may be caught up as a bit player in Mueller’s investigation.
It isn’t hard to detect the irony of an argument that this disqualifies Whitaker from overseeing Mueller, given Mueller’s friendship and past professional relationship with James Comey, a central figure in the investigation. Depending on the facts, though, it may be that Whitaker should recuse himself from an issue that directly involves Clovis.
The second argument raises difficult and, I think unresolved, issues of statutory and constitutional interpretation. Neal Katyal and George Conway (Kellyanne’s husband) argued in the New York Times that the appointment of Whitaker is flat-out unconstitutional.
For a more nuanced analysis of the issue, I recommend John Bies’ discussion at Lawfare. This piece by Marty Lederman, who like Bies is a liberal, is also worth considering. So is Will Baude’s contribution at the Volokh Conspiracy.
The third argument — that Whitaker will undermine Mueller’s investigation for partisan reasons or out of sheer loyalty to Trump — is a knee-jerk, off-the-shelf argument the Democrats would lodge against anyone Trump appointed. In addition, it is sheer speculation.
The reality, I think, is that Mueller is finally about ready to wrap up his investigation of the core issues he’s been interested in — alleged collusion and alleged obstruction of justice. It seems very unlikely that Whitaker will stand in the way of Mueller doing so (or that Trump wants him to).
To the extent the investigation becomes a broad-ranging inquiry into Trump’s financial dealings, Whitaker might well rein it in. That would be an appropriate exercise of the Acting Attorney General’s oversight responsibilities.
In the event that Whitaker adopts the view of Trump’s lawyers on a given legal issue pertaining to the investigation — e.g., a privilege claim — and seeks to impose it, my view will depend on the merits of that particular issue. In general, though, I think it is appropriate for the Acting Attorney General to have a say on such issues, particularly when they raise important constitutional issues, the resolution conceivably could produce a constitutional crisis.
UPDATE: At Breitbart, Ken Klukowski makes a case for the legality of Whitaker’s appointment.