Matthew Whitaker isn't acting like just a caretaker as interim attorney general
WASHINGTON – It’s been only a week, but Matthew Whitaker is acting nothing like a placeholder.
Hours after his appointment as interim attorney general following the ouster of Jeff Sessions, the former Iowa federal prosecutor played the role reserved for the Justice Department chief at the investiture of new Supreme Court Associate Justice Brett Kavanaugh.
He has weighed in on the combustible immigration debate, characterizing the southern border as “in crisis.”
He described a surge in hate crimes as “a call to action … and we will heed that call.” And he did not let the Veterans Day holiday go unrecognized, offering a public salute to the troops: “This is the land of the free because it is the home of the brave.”
Even as Democrats and some Republicans question his standing to hold the interim post, Whitaker is taking every opportunity – big and small – to assert his authority as if he is not going anywhere soon.
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Wednesday, Justice officials defended President Donald Trump's authority to elevate Whitaker to the temporary post without Senate confirmation as is required of other Cabinet officials. Whitaker took the trappings of office on the road back to Iowa where he tried out his new title before a hometown audience.
"Some of you may have heard that there have been some changes at the department in recent weeks," Whitaker, 49, said in prepared remarks before launching into a full-throated endorsement of the Trump administration's opioid enforcement policy and support of police. "The Trump administration will always be a law-and-order administration."
Whitaker's very public profile since Sessions' departure last week has added to wariness about Trump's judgment in selecting a little-known surrogate to serve on an interim basis as the nation’s chief law enforcement officer.
The reactions ranged from the extreme – Sen. Christopher Coons, D-Del., declared Whitaker a "clear and present danger" to the Russia investigation headed by Justice special counsel Robert Mueller – to plain anxious.
"I have never seen this before," said Jimmy Gurule, who was an assistant attorney general in George H.W. Bush's administration. "If this guy has the authority to serve temporarily, which I question, people have a right to question whether this goes beyond an ordinary caretaker role."
Even some who support Whitaker acknowledged the unusual circumstances that brought him to office and the controversial issues that immediately confront him.
"It may not be what we are used to," said Mark Corallo, who was Justice spokesman under Attorney General John Ashcroft. "A lot of what is happening now is not what we are used to. But there is nothing wrong with it. You do what you are told. If he's out on the road doing stuff and a little more out in front than what we've seen before (of an interim attorney general), it's likely because he's been told to do it. There's nothing inappropriate about it."
Whitaker's appointment has been a flashpoint from the moment it was announced – not surprisingly – in a tweet from the president.
Whitaker's public remarks criticizing Mueller's inquiry, once suggesting that funding for the investigation could be choked off, became instant fodder for concern about the fate of the special counsel's investigation, now under Whitaker's control. He made the comments during appearances on cable television and radio before he joined Justice last year as Sessions' chief of staff.
Until Whitaker's appointment, oversight of the Mueller inquiry rested with Deputy Attorney General Rod Rosenstein. The deputy, who selected Mueller as counsel, was placed in charge last year after Sessions' recusal from the inquiry because of his work for the Trump campaign.
"The president is clearly dodging the Senate confirmation process, installing a political lackey at the helm of the DOJ solely to obstruct the Mueller investigation," House Democratic Leader Nancy Pelosi said Wednesday. She said Whitaker was "unfit" for the job and should be recused from any involvement in the Mueller investigation.
Pelosi's comments were prompted by a 20-page Justice Department opinion Wednesday defending the appointment, asserting that Whitaker's senior executive status "unquestionably" authorized Trump's decision to elevate him even though the Senate did not confirm the designation.
The opinion, issued by Justice's Office of Legal Counsel, did not address whether Whitaker should be recused from the Russia investigation because of his comments. Nor did the document address any limits on Whitaker's authority as acting attorney general.
The Justice Department has said Whitaker, as acting attorney general, has full authority over all department operations, including sensitive prosecutions that range beyond Mueller's orbit.
Sen. Jeff Flake, R-Ariz., tried Wednesday to force a quick vote on legislation that would protect Mueller from being fired by Trump or Whitaker. Senate Majority Leader Mitch McConnell, R-Ky., objected and blocked the effort after saying the bill isn't needed because nobody has threatened to shut down the investigation.
Mueller's inquiry isn't the only one at stake. Federal prosecutors in Washington, New York and Pennsylvania are pursuing cases that either closely parallel the special counsel's work or were directly referred by Mueller – all of which now fall under Whitaker's oversight.
• In July, Russian national Maria Butina was charged as an agent for the Kremlin in an alleged attempt to infiltrate organizations with special influence in American politics, including the National Rifle Association.
• In August, Trump’s former personal lawyer and self-described “fixer,” Michael Cohen, pleaded guilty to charges related to paying hush money at Trump’s direction to women alleging extramarital affairs with Trump. Cohen pleaded guilty to tax and bank fraud, as well as campaign violations. The U.S. attorney for the southern district of New York is handling the case, though it was referred to New York by Mueller's team.
Cohen has yet to be sentenced. He has cooperated with Mueller's investigators.
• On the eve of Trump's meeting with Russian President Vladimir Putin in July, a dozen Russian military intelligence officers were indicted as part of Mueller’s investigation into Russian interference with the 2016 election. The officers engaged in a sustained hacking effort into the computer networks of the Democratic Congressional Campaign Committee, the Democratic National Committee and Hillary Clinton’s presidential campaign.
• Three months later, Russia's military intelligence apparatus was targeted again as seven officers were charged with hacking computers associated with hundreds of athletes and anti-doping sports organizations around the world from 2014 to 2018. The charges weren’t tied to Mueller’s investigation, but three of the same officers were charged in both cases. The chief federal prosecutor in Pittsburgh is handling the case.
Even in high-profile cases, federal prosecutors in districts beyond Washington are traditionally afforded some measure of autonomy to set their own guidelines and make charging decisions within their own offices.
There are limits.
"In Whitaker's case, the elephant in the room is the Mueller investigation," said David Weinstein, a former federal prosecutor in Miami who served as chief of the Public Integrity Unit. "And to date, Whitaker, in his own words, has shown a bias against Mueller, even raising the prospect of taking money away from it. I think people have a right to be concerned about what happens next."
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