What did Trump want Matt Whitaker to do about the Michael Cohen prosecution?

Set aside the fact that CNN claims the president not only tried to influence the (acting) Attorney General’s oversight of a criminal investigation for political reasons, he did so with respect to an investigation that implicates him personally. For any other administration that’d be an 80-point page-one banner headline. For Trump it’s the fourth- or fifth-most explosive news this week.

It’s not an obvious candidate for the “fake news” treatment either. After all, this is a guy who criticized the last AG over other criminal probes for different political reasons in full public view.


He never forgave Jeff Sessions for recusing himself and ceding control of Russiagate to a non-political appointee in Rod Rosenstein. He’s made no bones about the fact that he thinks the Attorney General’s job should be to protect the president from criminal jeopardy. So imagine his surprise and disgust when the Mueller critic whom he elevated to chief of staff at the DOJ and then to acting AG sat back and let the Manhattan U.S. Attorney put the screws to Michael Cohen, eventually securing a plea that accused Trump himself of a conspiracy to skirt campaign-finance laws. What did Whitaker think his job was?

Trump was frustrated, the sources said, that prosecutors Matt Whitaker oversees filed charges that made Trump look bad. None of the sources suggested that the President directed Whitaker to stop the investigation, but rather lashed out at what he felt was an unfair situation.

The first known instance took place when Trump made his displeasure clear to acting attorney general Matt Whitaker after Cohen pleaded guilty November 29 to lying to Congress about a proposed Trump Tower project in Moscow. Whitaker had only been on the job a few weeks following Trump’s firing of Jeff Sessions.

Over a week later, Trump again voiced his anger at Whitaker after prosecutors in Manhattan officially implicated the President in a hush-money scheme to buy the silence of women around the 2016 campaign — something Trump fiercely maintains isn’t an illegal campaign contribution. Pointing to articles he said supported his position, Trump pressed Whitaker on why more wasn’t being done to control prosecutors in New York who brought the charges in the first place, suggesting they were going rogue.

As I say, set aside any questions about the propriety of this. No one who’s stayed put on the Trump train through his demagoging of Sessions, the dangling of pardons to influence witnesses, and the Whitaker appointment itself is getting off now due to squawking about impropriety. They’re onboard for this ride until its final stop, wherever that may be.

Look at this instead from the standpoint of raw political self-interest. How does it benefit Trump to lay into Whitaker for not trying to blatantly obstruct a criminal probe that might point to wrongdoing by the president? If Whitaker had intervened, about 50 different sources from the Manhattan U.S. Attorney’s office would have gone running to the NYT and WSJ within the hour to let them know. It would have been a mega-scandal, obstruction of justice by the president’s own handpicked crony at the head of the Department in the name of protecting him. House Democrats would already be preparing a subpoena for Whitaker in case he refused to testify voluntarily and articles of impeachment for him and Trump if he confirmed under oath that he had acted in the Cohen matter at Trump’s behest. Which is probably why Whitaker ended up doing nothing with respect to Cohen. What could he have done that wouldn’t have made Trump’s political predicament a hundred times worse?

And what did Trump want him to do? Have the charges against Cohen dismissed? Or just have any references to Trump excised from the DOJ filings? Given the nature of Cohen’s crime and the facts gathered by the U.S. Attorney, I don’t know how Whitaker could have done that. Cohen says he acted at Trump’s behest in orchestrating the Stormy Daniels and Karen McDougal payoffs; it seems likely that the feds have corroboration of that from someone else, probably David Pecker (and maybe Allen Weisselberg). If Whitaker had leaned on prosecutors to give a false version of what they believe to be true, that Cohen acted in concert with Trump, Cohen himself could have and almost certainly would have told the media that he had implicated Trump in the crimes during his cooperation sessions with the DOJ but that they had mysteriously refused to note that. Then the media would have demanded to know why that allegation wasn’t mentioned in any of the Department’s court filings about the matter. What would Whitaker and Trump have said?

Maybe Trump’s mad because Whitaker didn’t insist that prosecutors apply the president’s own legal theory that mistress payoffs are for partially personal reasons and therefore can’t count as campaign contributions under the law. But that’s just a theory. No court has validated it. On the contrary, a federal judge in the John Edwards case refused to accept that theory. If he had, the charges against Edwards would have been dismissed instead of going to the jury.

To put this another way, assuming the CNN story is true, Trump is mad at Whitaker for not trying to cover up something that couldn’t conceivably be covered up or suppressed at this point. There are too many people on both sides of the case willing to accuse him of complicity in the Daniels and McDougal matters. By ignoring that and chewing out Whitaker anyway, he’s made Whitaker an even juicier target for Democrats — and maybe made the case that Whitaker should recuse himself in overseeing Russiagate stronger:

There are already ethics officers at the DOJ who think Whitaker should recuse himself from Russiagate because his pre-DOJ criticisms of Mueller might create an appearance of impropriety. Now here’s CNN alleging that Trump leaned on Whitaker in another matter that had potential criminal implications for him. If Whitaker’s supervisory role over Mueller looked sketchy before, it’ll look that much sketchier in context of him being nudged to protect Trump from Cohen, enhancing the argument for recusal. Between this and the fact that Trump was urging Republicans yesterday to blow up the filibuster despite how that stands to benefit Democrats long-term, I’m forced to ask: Does he understand how the opposition might exploit his impulses? Jerrold Nadler’s going to have a field day with Whitaker over this.

Speaking of Whitaker and Russiagate, the DOJ sent a letter to Congress yesterday explaining why Whitaker hasn’t recused himself from Russiagate. The core defense is that he was worried about setting a precedent in which an AG might have to step back from supervising any investigation about which he expressed an opinion before taking the job. I get that argument, but the precedent here can be defined much more narrowly: The investigation is one that potentially implicates the president himself, and Whitaker was curiously plucked from obscurity to head the Department after voicing his skepticism of that investigation. It wouldn’t be so bad to have an informal rule on the books that the president can’t appoint someone who might plausibly be viewed as biased in his favor to oversee a probe of which he’s a subject.

In lieu of an exit question, read this take on the DOJ letter. The law says that a key factor when an official is weighing recusal is whether his personal participation in the matter is sufficiently important that it overrides concerns about an appearance of impropriety. How can that argument be made in Whitaker’s case, though, when his recusal would simply mean that Rod Rosenstein continues to oversee Russiagate like he has for the past 18 months? Whitaker won’t even have the AG job for much longer (probably). His participation’s not important.

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David Strom 4:01 PM on October 05, 2022