Acting AG Matt Whitaker won't recuse himself from Russiagate investigation

Can you imagine if he did? After Trump waited 18 months to push Sessions out and replace him with a loyalist who’ll take the reins on Russiagate from Rod Rosenstein, suddenly the new guy has to recuse himself too? That would feel like a cross between a “Twilight Zone” episode and “Veep.”

Which is what all of American politics feels like now, come to think of it.

Since stepping into his new role on Wednesday, Whitaker has faced questions — principally from Democrats — about whether he should recuse from the Russia investigation, given that he has written opinion pieces in the past about the investigation, and is a friend and political ally of a witness.

On Thursday, two people close to Whitaker said he has no intention of taking himself off the Russia case.

I don’t see why he should have to recuse. Recusal is for cases where the official has a conflict of interest, like Sessions potentially being a witness to Russian collusion per his work on Trump’s 2016 campaign. (Or, er, Rosenstein potentially being a witness to obstruction of justice per his role in Comey’s ouster.) Whitaker’s supposed offense, it seems, is merely having taken a dim view of Mueller’s investigation before he joined the DOJ as Sessions’s chief of staff, even once calling Mueller’s appointment “ridiculous” and “a little fishy.” But so what? If, as critics suspect, he was appointed interim AG for that reason, because he plans to hamstring the special counsel at the president’s behest, that’s not a “recusal” matter. That’s a “something for the new Democratic House majority to address ASAP” matter.

This, from the same WaPo story, is more interesting: “The two people close to Whitaker also said they strongly believe he would not approve any request from special counsel Robert S. Mueller III to subpoena the president.” Having his handpicked acting AG shield Trump from a subpoena would be a political disaster for the president almost on the order of firing Mueller, with Democrats guaranteed to move on impeachment because of it. He and Whitaker are better off letting the subpoena be served and fighting it out with Mueller in the Supreme Court, which now leans fairly strongly to the right, than doing something that’ll instantly shred whatever credibility Whitaker currently enjoys and cause Trump a bigger headache than simply refusing to testify would. For any other president, dodging a subpoena by pleading the Fifth would be gruesomely damaging. For Trump, though? His approval will probably go up among Republicans afterward. He fights!

But the subpoena talk is pie in the sky. If you believe CNN, Mueller’s almost ready to show his cards, even without ever having interviewed POTUS:

Trump’s legal team and other lawyers representing witnesses in the investigation expect that the President’s responses to Mueller could be one of the final pieces of the 18-month-long probe before the investigators present a report on their findings. Mueller’s team has begun writing its final report, multiple sources told CNN.

I can’t wait to read that final report! Assuming, that is, that AG Matt Whitaker releases it to the public. It’s his decision, you know. Gulp.

There’s another reason not to worry about a big subpoena battle. Namely, Whitaker’s own appointment as acting Attorney General is likely to be challenged in court first. Today at the Times two constitutional experts make the case that he can’t lawfully serve as AG. One is Democrat Neil Katyal, the other is … Republican George Conway, husband of Kellyanne. Their argument is simple: The Appointments Clause in Article II of the Constitution says that although Congress can grant the president the power to appoint “inferior officers” on his own, appointments of principal officers, i.e. department heads, Supreme Court justices, ambassadors and the like, require Senate confirmation. Even the Vacancies Reform Act, which grants POTUS the power to temporarily fill a vacancy left by a principal officer like the Attorney General, insists that the replacement have already been confirmed by the Senate for a different government position. (That’s why there were rumors for awhile that former EPA chief Scott Pruitt might lateral over to take Sessions’s place at the DOJ.)

Matt Whitaker, as Sessions’s chief of staff, was an “inferior officer” and didn’t need to be confirmed to that position by the Senate. So how can he constitutionally take the position of AG?

It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys…

Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in such a position of grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.

Basic checks-and-balances. Principal officers serve the people and answer directly to the president, so the Senate has to sign off. Otherwise the executive might get a funny idea in his head that he can appoint cronies to all the biggest positions in government to do his bidding.

There is support for this idea on the Supreme Court, and not necessarily just among the liberals:

Do not count on Kavanaugh and Gorsuch rescuing Trump here. They may not have the votes even if they want to. The wrinkle is that Whitaker was confirmed by the Senate for a different, much lower-ranking position, years ago. In 2004 he was named a U.S. Attorney for a district in Iowa by George W. Bush and approved by the upper chamber. If the constitutional challenge to his appointment reaches SCOTUS, the Court will face two questions. One: Can an interim AG be appointed without Senate confirmation? Two: If not, does Whitaker’s 14-year-old confirmation as a U.S. Attorney satisfy the confirmation requirement for his new role as AG? If I were Trump I wouldn’t bet heavily on winning this fight. Which raises the question, why didn’t any of the myriad lawyers around him tell him that Whitaker might quickly get booted out of the role by the courts on constitutional grounds?

Here’s Whitaker last year on CNN earning himself his new job. I’m not being cute in saying that either. Exit quotation from the NYT: “People close to the president said Mr. Whitaker first came to the attention of Mr. Trump because he liked watching Mr. Whitaker express skepticism about aspects of Mr. Mueller’s investigation on television.”