Matthew Whitaker and the Corruption of Justice

The real question isn’t whether the acting attorney general’s appointment is lawful, but whether it is part of a broader attempt to subvert the rule of law.
 By The Editorial Board

By forcing out Attorney General Jeff Sessions and appointing Mr. Sessions’s chief of staff, Matthew Whitaker, as acting attorney general to take over the Justice Department — and, not incidentally, the investigation by the special counsel, Robert Mueller — President Trump has set off a storm of legal questions. 

Does the appointment of Mr. Whitaker comport with the Appointments Clause of the Constitution or the Federal Vacancies Reform Act of 1998? Doesn’t the law give control of the department to Rod Rosenstein, the deputy attorney general who appointed Mr. Mueller and oversaw the investigation because Mr. Sessions had recused himself?

To add to the academic discussion, the Justice Department’s own Office of Legal Counsel, which weighs in on major legal questions, gave its imprimatur to Mr. Trump’s decision on Wednesday. Now the state of Maryland and at least one criminal defendant are challenging the legality of Mr. Whitaker’s appointment in hopes that a federal judge will declare it invalid.

But all of this debate, hairsplitting and litigation distracts from a more persistent question: Is it O.K. for a president to shut down an investigation of himself? To answer that question yes is to take the position that not only this president, but any president in the future, is free to take the law into his own hands.

The reason Mr. Trump replaced Mr. Sessions with Mr. Whitaker seems clear. When The Daily Caller, a conservative news website, asked Mr. Trump last week for his thoughts about the man now running the Justice Department, the president volunteered, “As far as I’m concerned, this is an investigation that should have never been brought. It should have never been had. It’s something that should have never been brought. It’s an illegal investigation.”

Mr. Whitaker is an avowed antagonist of Mr. Mueller — he has called the investigation a witch hunt, said Mr. Mueller’s team should not investigate Mr. Trump’s finances and suggested that an attorney general could slash the special counsel’s budget. 

As if concerns about the Constitution, the law and Mr. Whitaker’s judgment weren’t enough, the broader picture that has emerged about Mr. Whitaker is even more disturbing. He has expressed skepticism toward Marbury v. 

Madison, the landmark case that established the concept of judicial review; he would support the confirmation of federal judges who hold “a biblical view of justice”; he may have prosecuted a political opponent for improper reasons when he was a federal prosecutor in Iowa; and then there’s the fiasco of his business involvement with a company accused of scamming customers that is being investigated by the F.B.I.

Justice Department regulations governing the day-to-day operations of the special counsel’s office allow for Mr. Whitaker to be read in on many of its inner workings, including that the acting attorney general be given “an explanation for any investigative or prosecutorial step” that Mr. Mueller decides to take. So there is nothing to keep Mr. Whitaker from being the president’s eyes and ears inside the most closely guarded investigation in the history of American politics.

On Thursday morning, the president rage-tweeted that Mr. Mueller was a “highly conflicted” person, leading a legal team that is “a total mess.” “They are screaming and shouting at people, horribly threatening them to come up with the answers they want,” Mr. Trump wrote.