The Slatest

DOJ Ethics Official Recommended Acting Attorney General Whitaker Recuse Himself From the Special Counsel Investigation

Whitaker squints slightly as he stands in front of a podium.
Acting Attorney General Matthew Whitaker. Jamie Squire/Getty Images

Update, 6:30 p.m.: A top ethics official at the Department of Justice, in fact, recommended acting attorney general Matthew Whitaker recuse himself from his potential oversight role of the Russia investigation. The ethics official determined it was a “close call,” and while Whitaker was not legally obligated to step aside, the temporary appointee should do so to avoid the appearance of a conflict of interest. This recommendation reported Thursday evening comes in stark contrast to the reporting earlier in the day by CNN that Whitaker had received the all clear from Justice Department ethics officials. The source of that story retracted the account hours after it went public.

Whitaker met several times with DOJ ethics officials during the consultation process, but never formally requested an ethics recommendation from Justice Department ethics officials, according to multiple reports. As a result, the DOJ official’s ethics recommendation to recuse was made in an informal manner to Whitaker through a team of four Justice Department officials the incoming attorney general assembled to advise him upon taking office. It was that team of advisers, who disagreed with the DOJ ethics official’s recommendation, that suggested Whitaker not recuse himself. “Typically, ethics officials make recommendations that Justice Department employees are expected to follow, but the final decision on whether to recuse over an appearance of a conflict of interest was always Whitaker’s to make,” past and current officials told the Washington Post.

Original Post: Justice Department ethics officials have told acting Attorney General Matthew Whitaker that he does not need to recuse himself from overseeing special counsel Robert Mueller’s investigation, CNN reported Thursday.The recommendation comes despite Whitaker’s track record of sharply criticizing the investigation. Writing for CNN in November, Whitaker called for Deputy Attorney General Rod Rosenstein to order a limit to the scope of the investigation, warning that it was “dangerously close” to crossing a “red line.” He has tweeted repeatedly that Mueller (or the “Mueller lynch mob,” as he put it once) should stop. And as a legal commentator on CNN, he said in 2017 that then–Attorney General Jeff Sessions should be replaced by someone who would not fire Mueller but “reduce[] his budget to so low that his investigation grinds to almost a halt.” Given his clear position on the matter, some thought ethics officials would advise Whitaker (who served as Sessions’ chief of staff) to follow Sessions’ lead and recuse himself.

If Whitaker, who has never indicated he intended to recuse himself, stays true to his past statements, his broad power over the investigation could threaten Robert Mueller’s ability to pursue new leads or efficiently wrap up those already investigated. While before the midterms it had been reported that Mueller’s team was close to wrapping up its investigation, more recent speculation, factoring in the spate of recent plea deals, suggests it could go on a while longer.

According to CNN, Whitaker has been in contact with ethics officials at the department since his appointment in November. In the meantime, Democrats have challenged Whitaker’s appointment, arguing that Trump misinterpreted the Federal Vacancies Reform Act in appointing him and that Rosenstein should actually be the acting attorney general, under the law. Rosenstein’s office, which oversaw the investigation during Sessions’ time in office, is still managing the investigation on a day-to-day basis, according to CNN.

In December, Trump announced he had nominated William Barr to be the next attorney general. Barr has proven a less controversial choice than Whitaker, but he, like Whitaker, has consistently voiced opinions that please the president. He has criticized Mueller for hiring Democratic prosecutors, defended the president’s decision to fire James Comey from the FBI, and called for an investigation into Hillary Clinton over a uranium mining deal. If Barr is confirmed by Congress, he will oversee the Mueller investigation.