Did Donald Trump appoint Matthew Whitaker in order to curtail the special counsel probe? “Matt Whittaker is a highly respected man,” Donald Trump declared in a presser this morning, “but I didn’t know Matt Whitaker.” Trump insisted he never discussed Robert Mueller with Whitaker, but that he chose Whitaker because he is “very highly respected by law enforcement”:
Pres. Trump says he did not speak to Matthew Whitaker about special counsel Robert Mueller's probe.
— ABC News (@ABC) November 9, 2018
Trump said Whitaker was “highly thought of” but stressed he does not know him personally.
“I didn’t speak to Matt Whitaker” about special counsel Robert Mueller’s probe, Trump told reporters at the White House.
Maybe Trump didn’t speak to Whitaker about Mueller, but he certainly knows Whitaker. Reporters pointed to a Washington Post profile by James Hohmann on Whitaker, which noted that Trump met with him “dozens” of times instead of with Jeff Sessions, the man he replaced this week. Another Washington Post report quotes sources in the White House as saying that Whitaker’s personal loyalty was the deciding factor in his advancement to acting AG:
The White House official said the president liked Whitaker, who was a “backslapping, football kind of guy” who had briefed Trump on many occasions because the president preferred not to talk to Sessions.
“The president never wanted to see Jeff. So a lot of other people at DOJ got to see the president,” the person said.
Whitaker, a former U.S. attorney who ran an unsuccessful campaign for a Senate seat in Iowa, played college football at the University of Iowa. In 2014, he chaired the campaign of Sam Clovis, a Republican candidate for Iowa state treasurer. That might present another potential ethics complication for Whitaker’s supervision of the special counsel; Clovis went on to work as a Trump campaign adviser and has become a witness in Mueller’s investigation.
Just how credible is it that Trump wouldn’t have discussed the Mueller investigation with Whitaker before making the decision? The reason Trump dumped Jeff Sessions this week (and belittled him publicly for over a year before that) is that Sessions wouldn’t reverse his recusal on Mueller. Vanity Fair’s Gabriel Sherman reported this week that Don Jr is now worried that he’s about to be indicted for making false statements to investigators and Congress, which might be the big score Mueller gets out of Rick Gates. Don Jr’s lawyer denies this, but risks still abound in this probe, including the still-mysterious grand jury subpoena that got high-priority treatment by the courts.
With all that at stake and with his unhappiness over Sessions’ failings as a wingman, it never came up at all? Maaaaybeee, but that seems as unlikely as Trump’s claims not to know Whitaker personally.
Trump did score a point back against the notion that Whitaker is ineligible for the position under the Vacancies Reform Act. Whitaker has been confirmed by the Senate in the past, Trump reminded everyone, when he was appointed US Attorney:
The president also rejected the notion that Whitaker, who formerly served as a is ineligible to serve as attorney general, a position held by some legal experts who say the Justice Department leader must be confirmed by the Senate.
The president said Mueller wasn’t Senate confirmed, “so don’t talk to me about Whitaker.” The special counsel’s office is not subject to Senate confirmation, while the attorney general is. Mueller was also confirmed by the Senate as FBI director in 2001.
Whitaker got Senate confirmation in 2004, but left that position in 2009 after Barack Obama took office. Whether that covers the requirement or not may be the subject for considerable debate. In their New York Times op-ed decrying Whitaker’s appointment as unconstitutional, George Conway and Neal Katyal acknowledged that earlier confirmation but dismissed it, writing that “Mr. Trump can’t cut and paste that old, lapsed confirmation to today.” It’s not entirely clear why he can’t, however, other than as a matter of taste. If Trump appointed someone confirmed in 2016, would there still be a defect? 2012? The law doesn’t appear to make those distinctions, and it’s unlikely to be adjudicated before Trump appoints a permanent replacement for confirmation.
Trump doesn’t think much of Conway’s argument anyway. His irritation at the spouse of his chief political adviser was quite apparent, and it might extend to Kellyanne Conway too.
Asked about op-ed co-written by George Conway calling Matthew Whitaker's appointment as acting attorney general unconstitutional, Pres. Trump replies, "You mean Mr. Kellyanne Conway?…He's just trying to get publicity for himself." https://t.co/ySEgSaX27W pic.twitter.com/tAp4tV60lA
— ABC News (@ABC) November 9, 2018
Update: Just a month ago, this is what Trump had to say about Matt Whitaker, emphasis mine (skip to 34:47):
Well, I’d never talk about that, but I can tell you Matt Whitaker is a great guy. I mean, I know Matt Whitaker, but I never talk about conversations that I had. But, you know, the Washington Post gets it wrong a lot.