This is not what was reported this morning. “Whitaker Cleared by DOJ Ethics Officials to Oversee Mueller,” Bloomberg noted earlier, claiming that the pros at the department had vetted Whitaker and given him the green light to supervise Russiagate. That claim was quietly modified later, though, with Bloomberg now alleging that Whitaker “never asked for a formal recommendation on whether he should recuse himself” and ultimately decided that he didn’t need to. He simply … cleared himself.
Now comes the truth(?) from WaPo. The ethics office actually gave him a red light on Russiagate. Whitaker ignored it.
Whitaker never asked Justice Department ethics officials for a recommendation, nor did he receive a formal recommendation, this official said.
However, after Whitaker met repeatedly with ethics officials to discuss the facts and the issues under consideration, a senior ethics official told the group of advisers on Tuesday that it was a “close call,” but Whitaker should recuse to avoid the appearance of a conflict of interest, the official said. Whitaker was not present at that meeting, the official said.
Those four advisers, however, disagreed with the ethics determination, and recommended to Whitaker the next day not to recuse, saying there was no precedent for doing so, and doing so now could create a bad precedent for future attorneys general.
Ethics officials have no power to force a recusal, merely to recommend it, and the recommendation in this case was informal. But as “Little Adam Schitt” said to the Post, DOJ officials typically try to avoid not just actual impropriety but the appearance of impropriety. If the ethics division is sufficiently bothered by Whitaker’s pre-AG comments about Mueller’s Russiagate investigation to believe recusal is warranted — and now to leak that finding, apparently — it’s strange that Whitaker would choose to accept the appearance of impropriety instead.
You can read the players’ motives here as charitably or as cynically as you like. The pro-Whitaker read is that this is an obvious case of DOJ careerists trying to harass and embarrass an appointee whom they don’t respect and whom they fear might move against Mueller. The case that Whitaker did something unethical seems thin to me, truth be told. Before he joined the Department, he thought Mueller was at risk of exceeding the Russia-focused scope of his investigation. So what? He’s entitled to his opinion. Sessions had to recuse himself because he was a top surrogate for Trump in 2016 and a player in the campaign that’s being probed for collusion with Russia. Conceivably the investigation might have implicated him, a gross conflict of interest. Whitaker wasn’t any kind of major figure in Trump’s presidential run, though. He’s a guy with a dim view of Mueller’s operation. If he can’t be trusted to impartially oversee the probe because he’s been appointed by a president whose campaign is being looked at then arguably no Trump appointee can be trusted to do so.
The anti-Whitaker read is that the guy really is an underqualified crony who was placed in the job *because* he’s skeptical of Mueller. That is, his skepticism appears to be his chief qualification in Trump’s eyes; there’s no other apparent reason why POTUS would have plucked a former U.S. Attorney from Iowa turned CNN commentator to be Sessions’s chief of staff and then acting Attorney General. Whether or not there’s actual impropriety here, there’s a genuine appearance of impropriety, a perception that the president is worried that the special counsel might find something incriminating on him and wants a loyalist in place as AG to carry out some sort of drastic order to rein in Mueller in case he ends up in legal jeopardy. It would be better for the Department’s (and Whitaker’s) reputation under the circumstances if he gave up control of the probe. But he’s refused. How come?
At first blush it seems strange that Whitaker’s staff would be worried about the precedent this might set for future AGs given that he’s only in the job temporarily and there’s already a permanent replacement awaiting confirmation in the Senate. But maybe this little ethics spat over Whitaker is actually a proxy fight for the bigger fight to come over Bill Barr, Trump’s nominee for Attorney General. Barr’s a strong believer in executive power and has also made skeptical noises about Mueller’s probe. The news today that he sent Rod Rosenstein a memo, unsolicited, over the summer laying out his concerns about Mueller was a surprise, though. When Trump nominated him a few weeks ago, I thought it seemed out of the blue. Not so much now. Knowing that that memo was circulating at the DOJ and might have gotten back to Trump — perhaps via Sessions’s chief of staff, Matt Whitaker? — explains POTUS’s interest in him and makes me wonder if Barr’s about to have an ethics problem at the Justice Department too. If the argument against Whitaker is that there’s an appearance of impropriety in the president nominating an outspoken pre-nomination critic of the man investigating him for possible collusion, how does that argument not also apply to Barr?
And why did Barr send that memo, anyway? I’ll defer to legal eagles on the question but it strikes me as odd that a former AG would choose to fire off a legal opinion on the hottest investigation in America to the current deputy AG just because he felt like doing it.
The fact that Barr has a view of executive power on which Trump would be clear on obstruction isn’t really the point—that’s a debatable but legitimate position to hold. The fact that he wrote a 20 page audition letter on the point & sent it to Trumps lawyers is sketchy as hell.
— Julian Sanchez (@normative) December 20, 2018
That’s not even comic exaggeration, by the way. Barr could easily bill $1,500 hourly. Conservatively assuming an hour per page, that’s a Camry with some tricked out options at minimum.
— Julian Sanchez (@normative) December 20, 2018
Is Sanchez right? Was Barr informally “auditioning” for the job of AG with the memo to Rosenstein, expecting that Trump’s bete noire, Jeff Sessions, would be out sooner or later and hoping to impress POTUS? Democrats are going to have a field day during his confirmation hearing with the fact that Trump has coincidentally chosen not one but two people for the AG job whose views on Mueller were negative and well known before they were nominated. Expect a lot of “appearance of impropriety” talking points to come. Exit question: What will the DOJ’s ethics department say about Barr’s ability to supervise Russiagate? Does Trump want to go ahead with this nomination when there’s a chance that his new guy might have to recuse himself too, putting Rod Rosenstein back in charge? Schumer’s already asking.