With President Donald Trump continuing to rail against the investigation led by special counsel Robert Mueller, he has appointed an acting attorney general who has previously declared that a president has the absolute right to kill any investigation he wishes to end.
On Wednesday, Trump announced the forced resignation—that is, the firing—of Attorney General Jeff Sessions, whom Trump had long derided in public for having recused himself from the Russia investigation Trump has repeatedly called a “witch hunt.” Trump’s beef has seemed to be that Sessions on his own accord limited his ability to stifle or end this inquiry and could not protect Trump. But Sessions’ successor, Matt Whitaker, who had been Sessions’ chief of staff at the Justice Department, has not recused himself from overseeing the Mueller investigation and, perhaps more important, has expressed the view that Trump can do whatever he wants to thwart the investigation—and be immune to any charges of obstruction of justice.
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Before joining the Justice Department, Whitaker, a former US attorney, was the head of a conservative nonprofit called the Foundation for Accountability and Civic Trust, and in this role, he often appeared on right-wing radio shows to discuss the Trump-Russia scandal. On June 9, 2017, Whitaker was asked on the David Webb Show about a congressional hearing the previous day, during which James Comey, whom Trump had recently fired as FBI director, had said that Trump had asked him to drop the bureau’s investigation of former national security adviser Michael Flynn. Some legal experts and members of Congress had suggested that Comey’s account suggested Trump had engaged in obstruction of justice. Whitaker disagreed. He contended, “There is no case for obstruction of justice because the president has all the power of the executive and delegates that to people like the FBI director and the attorney general…The president could and has in our nation’s history said stop investigating this person or please investigate this other person.” Whitaker belittled talk about obstruction of justice in this case as “hyperventilation.”
In another radio interview on the day of the Comey testimony, Whittaker dissed the Mueller investigation, remarking, “There’s really nothing here.” And he explicitly said Trump had the right to shut it down or control its direction: “This is power that is completely vested in the president…If he wanted to he could have told Jim [Comey] to stop investigating former [Defense Intelligence Agency] director Flynn. And he didn’t…I’m sure he made his preference known. Quite frankly, he’s president of the United States. He can do that.” Whitaker conceded that it might be fair to characterize such a presidential demand as “inappropriate,” but he insisted it would well be within Trump’s prerogatives.
Whitaker was adopting a broad view of executive power, under which Trump, or any president, could at will order the closing of any investigation launched by the FBI or another federal agency. Trump could also demand the FBI initiate an investigation of anyone for any reason, including his political enemies. This is not a belief widely held throughout the legal community, with many experts asserting that a president can commit obstruction of justice if he acts with corrupt intent. (The first of the three articles of impeachment against President Richard Nixon included an obstruction-of-justice charge that was related to instructions Nixon gave the CIA to impede the FBI’s investigation of the Watergate break-in.)
The media coverage of Whitaker’s appointment as acting attorney general has noted that as a pundit and CNN commentator he has denigrated the Mueller investigation (calling it a “lynch mob”), explained how the probe could be strangled by reducing its funding, and urged Trump not to cooperate with it. His remarks on the David Webb Show indicate he believes Trump could end the investigation or parts of it by presidential fiat—and that Whittaker, while serving as chief of the Justice Department, would abide by such a decision. It seems rather obvious that Whitaker would fully accept an order from Trump to fire Mueller and do whatever it takes to squash the investigation.
Whitaker has taken other positions that ought to cause Trump delight. During the 2016 campaign, he said he disagreed with Comey’s recommendation that Hillary Clinton should not be prosecuted for using a private server for email she sent and received as secretary of state. He said that as a federal prosecutor he would have indicted Clinton and even called for a special prosecutor to investigate Clinton and her emails, noting that such a prosecutor should be handed “broad discretion.” He also proposed the appointment of a special prosecutor to investigate the Clinton Foundation.
Ever the vigorous defender of the Trump crew, Whittaker in June 2017 maintained, “There was no collusion with the Republicans and the Trump campaign…There is not a single piece of evidence that demonstrates that the Trump campaign had any illegal or even improper relationships with Russians. It’s that simple.” (Two weeks later, the news broke that Donald Trump Jr., Paul Manafort, and Jared Kushner had met during the campaign with a Russian emissary, after they were informed she could provide them dirt on Clinton, as part of a secret Kremlin scheme to help the Trump campaign.)
Trump’s dismissal of Sessions immediately triggered speculation that this was merely his first step toward crushing Mueller and his investigation—that he was readying to launch an order to fire Mueller. If anything of the sort happens, Whitaker apparently would have no trouble saluting and supporting that command. For Trump, who has desired to have at the top of the Justice Department a consigliere—his own Tom Hagen or Roy Cohn—who can protect him and do his bidding, Whitaker is the perfect henchman.