Thursday morning, Donald Trump tweeted this:
Tell us more, Mr. President, about the inner workings of the investigation of which you’re a subject.
This raises the question, though: if Trump does indeed know things about Mueller we don’t, how could he have gotten that information?
One possibility: From his newly-appointed Attorney General, Matt Whitaker, who has publicly criticized the investigation and called for Mueller to be reined in. Whitaker has been in place for more than a week now, plenty of time to glean a load of inside information and pass it on to the White House.
On Wednesday, the Department of Justice published a memo outlining the legal justification for Whitaker’s appointment, which filled the vacancy left last week when Trump forced Jeff Sessions out. Also on Wednesday, prosecutors for the state of Maryland challenged in federal court the constitutionality of Whitaker’s appointment, on the grounds that the Attorney General must be vetted by the Senate. Both sides cite existing federal statutes to support their case, so the legal fight here is essentially about which laws supersede: The ones that say the President can install basically whoever he wants in a cabinet-level position, or the ones that say he can’t.
But given that Trump is, at minimum, the subject of a criminal investigation by his own Justice Department, and given that Whitaker has publicly called for that investigation to be limited and for the person overseeing it, Deputy Attorney General Rod Rosenstein, to be removed from that role, it’s obvious what’s going on here. It’s also an emergency: Special Counsel Robert Mueller reportedly has more indictments in the chamber, indictments which may include close Trump associates (such as Roger Stone) and possibly, according to recent reported leaks from Donald Trump Jr.’s friends, the president’s son himself. According to CNN, Mueller is also preparing the first of his final reports, this one about whether Trump tried to obstruct justice, and Trump firing Sessions and appointing Whitaker is perhaps the strongest piece of evidence against the president yet.
Whatever has happened or is happening now between Trump and Whitaker appears to be a criminal cover-up of a criminal cover-up of a crime—but it might work. More troubling: It might already have worked. We just don’t know what Whitaker knows. Or what he’s told Trump.
Luckily there are a number of reasons Whitaker’s appointment might not affect Mueller’s investigation, and there are several compelling reasons he should recuse. But he doesn’t even have to take action. He just has to see stuff. And he very likely can, and possibly already has.
The Masculine Toilet in Human Form
Look. Beyond Whitaker’s maddeningly obvious conflicts of interest with the Mueller investigation, about thirty thousand other things—all of them scummy and some stunningly funny—should automatically disqualify him as AG. Take for instance his anti-Semitism. Or his stated belief that Marbury v. Madison—which initially established the Supreme Court as the ultimate constitutional authority—was the worst SCOTUS decision of all time.
Or take the three years Whitaker spent serving as litigious muscle for an illegal marketing scam shut down last year by the FTC and currently under FBI investigation (an agency Whitaker now controls). The FTC believes Whitaker’s former employer—World Patent Marketing—bilked its clients of $26 million, but the agency was able to recover only $2 million of that money. Per the FTC criminal complaint, in the course of those three years WPM swindled thousands of people out of millions of dollars by shilling for their ridiculous and nonviable inventions, which included among other things a lollipop designed to help babies breathe and a “Masculine Toilet,” designed to give men with giant dongs the comfort they deserve while sitting on the john. Whitaker’s job was to lean on his title of “former US Attorney” to intimidate potential litigants from suing the fraudulent company.
By the way, the press release for the Masculine Toilet was the same release that announced Whitaker’s hiring. Two paragraphs before that announcement, the press release reads “According to a comprehensive university study brokered by World Patent Marketing, there is a strong likelihood of this product being successful in the marketplace.”
(It wasn’t. Neither were any of the other WPM-backed inventions.)
The most immediate concern, though, is confusion at the top of the DOJ. After all, Whitaker currently operates in a legally gray area, which creates an ethical dilemma for DOJ staff: Do they default to Sessions’ replacement unless and until he’s proved illegitimate, obeying him as they obeyed Sessions? It’s possible Whitaker could take advantage of this immediate window—which is open right now—to interfere with the investigation, on the bet his department won’t challenge the legitimacy of his decisions in the meantime.
Equally important to Mueller, though, is the worry about the damage Whitaker could do—in the meantime or as permanent AG—to the Justice Department generally. This is especially concerning given Whitaker’s radically conservative view of federal law, particularly about Marbury and the related belief that states can individually overrule federal law. This could have profound ramifications for how the government enforces federally mandated policy—such as Obamacare—or whether it even will in the first place.
Every day that passes gives Whitaker more opportunities. So in the meantime, what might he already have done?
Perhaps Whitaker wouldn’t want to take aggressive steps at Mueller right out of the gate, because that would probably raise flags in the department. But if he’s going to act, the rumored indictments and looming obstruction report pressure him to act quickly. But Whitaker doesn’t even need to take action to undermine Mueller right now: If Whitaker can see inside the investigation, he can learn what Mueller knows, and he can make sure that information gets to the White House.
That damage would be permanent: You can’t unlearn things, and Mueller can’t invent new facts. For Trump, the next best thing to shutting Mueller down would be to know everything he knows now, and as he learns more in the future.
Some experts have contended that Whitaker had the authority to begin digging into the Mueller investigation on day one. (Sessions couldn’t see inside the investigation because after lying to Congress about his conversations with Russian Ambassador Sergei Kislyak he recused himself from all issues related to the Trump campaign.) Though DOJ protocol generally requires the Attorney General to go through official channels to share information with the White House, no explicit laws prevent Whitaker from going straight to Trump. The only thing in his way is the resolve of the people who work for him, who might question or outright refuse to follow certain orders until the courts rule on his standing.
Interestingly, this includes Mueller’s team, who might themselves refuse to share information with Whitaker and dare him to take the matter to court himself. This would not only force Whitaker to make a positive argument justifying his appointment, it would also make the public aware that Whitaker was indeed trying to see inside the investigation.
That last part is especially important, because if Whitaker does insert himself (or already has) into the hermetically classified Mueller investigation—or even if he takes more aggressive steps to impede or vitiate it—we may never learn about it.
Depending what happens in Maryland, Whitaker’s case will likely get fast-tracked to the Supreme Court, where it will land in the hands of another unqualified and toxic partisan Trump appointee, Brett “Bart” Kavanaugh, who has publicly said he doesn’t believe a sitting president can be indicted.
Does Whitaker have a case? I won’t get down to the gnat’s ass, but basically the Constitution says the Senate must confirm cabinet-level appointees. However, there’s a contravening Vacancies Act that says the president can fill such a position with anyone who serves as high-level staff in the same department as the outgoing official. Whitaker fits that description. But as the State of Maryland argues in its pending suit—which chiefly concerns Obamacare but also addresses the threat to Mueller—other federal statutes seem to clarify that the Vacancies Act doesn’t apply to “principal” government positions; that is, officials who respond directly to the president. Officials such as the Attorney General. The question—to risk oversimplifying it—is which law prevails in this specific case.
If you’re interested in the deets, here’s a NYT opinion piece written by conservative lawyers making the case that the appointment is unconstitutional. Here’s the DOJ’s argument justifying the appointment. And here’s a rundown of the State of Maryland’s argument against.
Listen: The President is trying to get away with treasonous crimes against the country he governs. He’s orchestrating in broad daylight a shameless effort to bilk the American people out of justice, a process that has already proved corrosive to the judicial process and to democracy generally. And it seems possible that through Whitaker, Trump might actually succeed at obstructing Mueller before he reaches or publishes his conclusions, or hands down its most significant indictments. Though it’s possible the courts will rule Whitaker’s appointment invalid and declare that all his actions as AG are retroactively illegitimate, we aren’t there yet. In the time between last Wednesday and today, he could very well have done a lot of damage.
Again, though, “the DOJ case: for Whitaker’s appointment is pretty weak, and the arguments that he should recuse are pretty strong. And Senator Jeff Flake, Republican from Arizona, has told Senate Majority Leader Mitch McConnell that he won’t vote on any judicial nominee until Congress passes a bill guaranteeing Mueller’s protection. But if we’ve learned anything in the past two years, it’s that our institutions did not and could not anticipate the kind of duplicity and treachery of the Trump administration. Let’s hope the law holds here.