Acting Attorney General Whitaker's views on Mueller probe prompt calls for recusal from Democrats and legal experts 

Key Points
  • Newly appointed acting Attorney General Matthew Whitaker's past critiques of the Russia probe, which resurfaced in the wake of his appointment Wednesday, spurred immediate calls for his recusal.
  • The Trump administration's shake-up, which saw Attorney General Jeff Sessions' resignation less than a day after Democrats won the House in the midterms, is also raising concerns about whether Whitaker's appointment constitutes a potential obstruction of justice.
  • But Whitaker has no intention of recusing himself, The Washington Post reported Thursday.
Matt Whitaker 
Douglas Graham | CQ-Roll Call Group | Getty Images

Newly appointed acting Attorney General Matthew Whitaker's past critiques about special counsel Robert Mueller's Russia probe spurred immediate calls for his recusal from Democrats and legal experts.

Whitaker took on oversight of the investigation into Russian interference during the 2016 U.S. presidential election from Deputy Attorney General Rod Rosenstein.

The Trump administration's shake-up on Wednesday, in which Attorney General Jeff Sessions was fired, is raising concerns that Whitaker's appointment constitutes a potential obstruction of justice.

"The picture that's coming through is that of a staunch party loyalist. This isn't encouraging," said Liza Goitein, co-director of the liberty and national security program at the Brennan Center for Justice.

Whitaker, for his part, said in a statement Wednesday evening that he was "committed to leading a fair Department with the highest ethical standards." The Washington Post reported Thursday that he has no intention of recusing himself, citing people close to the new acting attorney general.

Jay Sekulow, Trump's lawyer in the Mueller probe, said on his radio show Thursday that Whitaker's promotion will have "no effect day-to-day" on the special counsel, Bloomberg reported.

Whitaker's words

Whitaker, 49, was named acting Attorney General after President Donald Trump fired Attorney General Jeff Sessions just hours after the midterm elections.

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A former Iowa U.S. attorney during the George W. Bush administration, Whitaker ran for public office as a Republican and was the executive director for a conservative nonprofit before being tapped to join the Justice Department as Sessions' chief of staff in September 2017.

One month prior to taking the post at DOJ, Whitaker wrote an op-ed for CNN arguing that if Mueller "were to continue to investigate the financial relationships without a broadened scope in his appointment, then this would raise serious concerns that the special counsel's investigation was a mere witch hunt."

Whitaker was agreeing with the president, who had said a month before the op-ed was published that a special counsel investigation of the Trump family's finances would be "a violation."

The piece reflected his prior comments as a pundit for the news network. In August 2017, Whitaker said on CNN that if the special counsel "does go beyond the 2016 election and get into Trump Organization finances unrelated to the 2016 election, and really unrelated to Russian coordination if it even exists, I think that would be crossing a red line."

He continued: "I think that's when the deputy attorney general ... needs to step in and pull the reins back on Bob Mueller if he starts to go outside of those bounds of his delegation of authority." The No. 2 DOJ official, Deputy Attorney General Rod Rosenstein, had taken over for Sessions in overseeing the special counsel's probe.

Whitaker also promoted an op-ed from former federal prosecutor George Parry, who argued in August 2017 that Trump's legal team should resist cooperating with the special counsel.

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Later that month, Whitaker in another appearance on CNN argued against accusations that Trump's hotel in Washington, D.C., presented a conflict of interest for the president.

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Whitaker also has close connections to Sam Clovis, a former Trump campaign aide who was reportedly questioned by Mueller. Whitaker chaired Clovis' Iowa State Treasurer campaign in 2014, and Clovis told Talking Points Memo on Wednesday that "He and I are very good friends, very close friends, and I'm very happy for him."

What's more, Whitaker appeared to defend Trump campaign officials' meeting with Kremlin-connected Russians at Trump Tower in June 2016.

"There is no federal crime of collusion. So we're either looking at espionage charges, which seems farcical with the evidence we have now, or we're looking at campaign finance violations, but I still don't see how there's anything of value there," Whitaker said.

Calls for recusal

Claire Finkelstein, a law professor and director for the Center for Ethics and the Rule of Law at the University of Pennsylvania, said that even his selection to become Sessions' chief of staff — shortly after penning the CNN op-ed — should raise alarms.

"The plan clearly had been to put [Whitaker] in the Justice Department and then promote him when an opportune occasion arose," Finkelstein said.

"It's clear that he was selected because of his views on the special counsel investigation," she said. "That, again, goes to the questions of whether or not this was an orchestrated obstruction of justice campaign by Donald Trump."

The Brennan Center's Goitein noted that his "statements suggest he's opposed to a full and fair investigation by the Mueller team and has prejudged what the outcome should be, at least with respect to possible collusion between the Trump team and Russia."

Ryan Goodman, a New York University law professor and former special counsel to the Defense Department's general counsel, argued that Whitaker needed to recuse himself, citing in part Whitaker's remarks in June 2017 that "there is no criminal obstruction of justice charge to be had here" following ex-FBI Director James Comey's testimony on Capitol Hill.

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Leading Democratic lawmakers, some of whom have already called on Congress to pass legislation that would protect the special counsel, agreed that Whitaker should not oversee the investigation.

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Democratic Reps. Jerrold Nadler and Adam Schiff, who are considered likely to become chairmen of House committees next year, expressed concerns about Sessions' resignation and Whitaker's appointment.

The timing of Whitaker's appointment — less than a day after Democrats won back majority control of the House — was also noteworthy to some legal experts.

Schiff, who could lead the House Intelligence Committee and revive its own probe of Russian election meddling, said "Whitaker and any nominee must commit" to protecting Mueller and the independence of the Justice Department.

"It is impossible to read Attorney General Sessions' firing as anything other than another blatant attempt by @realDonaldTrump to undermine & end Special Counsel Mueller's investigation," House Minority Leader Nancy Pelosi said before calling for Whitaker to recuse himself.

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Nadler, who is expected to lead the House Judiciary Committee, raised the possibility that Trump was firing Sessions and hiring Whitaker "for the purposes of subverting the rule of law and obstructing justice."

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The new Congress, which will see Democrats controlling the House committees and possibly exerting oversight powers on the Trump administration, will not take effect until Jan. 3, 2019.

The Republicans who still hold the House majority until that date are "not likely to exercise" congressional oversight in the interim, said William Heffernan, law professor at John Jay College of Criminal Justice.

Currently, Whitaker is "in a position to seriously undermine the Russia investigation," argued Goodman and Harvard law professor Alex Whiting.

"His repeated expression of hostility to the Mueller investigation makes it impossible for the public to have confidence in his ability to exercise the necessary prosecutorial judgment," Goodman wrote in a separate piece calling for Whitaker's recusal.