Why you should care
Because this Trump favorite is now overseeing the Mueller investigation.
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The brawny former tight end with a shaved head stands with his back to a football field as he recounts his past heroics for the beloved Iowa Hawkeyes, and more recent exploits prosecuting “thugs and predators” as U.S. attorney for the Southern District of Iowa. “When it comes to standing up to Barack Obama, I won’t waver,” Matt Whitaker says in an advertisement for his failed 2014 U.S. Senate campaign.
On Wednesday, President Donald Trump installed Whitaker as acting attorney general of the United States — immediately drawing questions about Whitaker’s willingness to stand up to Obama’s successor, particularly when it comes to the special counsel investigation into Trump. As at least a temporary replacement for Jeff Sessions, whom Trump asked to resign the day after the midterm elections, Whitaker is poised to bring the Justice Department closer to the White House. It could spell trouble for Robert Mueller’s investigation while offering promise for long-stalled prison reform.
In a CNN opinion piece, Whitaker raised “concerns that the special counsel’s investigation was a mere witch hunt.”
The 49-year-old Des Moines native gained Trump’s affection while essentially working as the Justice Department’s envoy to the White House as Sessions’ chief of staff, trying to bring the two entities closer together on criminal justice policies and other issues. In the past, Whitaker has been floated as the replacement for White House counsel Don McGahn. And he was reportedly the planned replacement for Rod Rosenstein — who to this point has been the man overseeing the Mueller investigation — when Trump considered firing the deputy attorney general in late September.
In August 2017, just a month before joining the Justice Department he now leads, Whitaker wrote a CNN opinion piece declaring that the Mueller investigation had gone too far by reportedly looking into Trump’s finances. He argued that the initial special counsel appointment only authorized Mueller to investigate potential coordination between Trump and the Russian government. “The Trump Organization’s business dealings are plainly not within the scope of the investigation, nor should they be,” he wrote, adding that if Mueller continued along that path, it would lead to “concerns that the special counsel’s investigation was a mere witch hunt.”
That final term is, of course, a favorite of Trump himself. Now Whitaker has the power to stymie the investigation. He could fire Mueller, which would invite a huge backlash, even from fellow Republicans, but could provide the president cover if the order didn’t come directly from the White House. But Whitaker has plenty of less drastic options too. He could work back channels with Republicans in Congress, such as intelligence committee chairman Devin Nunes, to expose documents or previously privileged information that would discredit the investigation. He could deny Mueller requests to expand the scope of his investigation. And because Mueller is required by his appointment to notify the attorney general of any major developments, Whitaker would be the first to hear when or if an indictment comes down — and would be the one to decide whether such charges are warranted, and, crucially, whether to share the findings with Congress.
Sessions recused himself from overseeing the investigation — to the loyalty-craving Trump’s eternal frustration — because he was being looked into for his own potential involvement with Russian actors. While Whitaker appears to have no clear conflicts of interest that would preclude him from overseeing Mueller, left-leaning commentators have claimed that the CNN opinion piece or the mere fact Trump selected him for the post should be disqualifying. “To give the president free rein to name a new AG, of whom he will no doubt demand an oath of loyalty, would be a grave disservice to the nation,” said Karen Hobert Flynn, president of Washington watchdog group Common Cause, in a statement. It’s questionable whether Trump can even legally name Whitaker to the cabinet post, considering he hasn’t been confirmed by the Senate. (Typically, the deputy — in this case, Rosenstein — would take over.) Tom Steyer, a billionaire liberal activist and potential 2020 presidential candidate who has called for Trump’s impeachment, called the situation “an immediate constitutional crisis.”
Still, criminal justice advocates believe the appointment of Whitaker could grease the way for reform. Under Sessions, the department often seemed to contradict Trump’s public statements by opposing reform bills. Trump’s son-in-law, Jared Kushner, has led White House attempts to pass the First Step Act, which would ease prison conditions and reduce sentences for those willing to participate in rehabilitation programs. With Whitaker at the helm, the opposition could disappear and a bill might pass quickly, suggests Holly Harris, executive director of the Justice Action Network. “Right now, our bill is a priority in the lame-duck session. It is one of the few things that can get done,” she says of the two-month period before a new Congress is sworn in. “If the window is open, you’ve got to take this opportunity.”
We’ll find out soon on prisons, as with Mueller, whether Whitaker will waver.