Apparently acting Attorney General Matthew Whitaker isn’t going anywhere.
A confidential source has told Axios that President Trump has shown “no great urgency” in nominating a replacement for former Attorney General Jeff Sessions and is very pleased with Whitaker’s supposed “courage” in defending him.
“Clearly what he likes about him is he’s holding his ground, not running for the tall grass,” a White House source told Axios.
Trump said in an interview on Sunday that he would not intervene if Whitaker, moved to curtail Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election.
Before he joined the Justice Department (DOJ) as Attorney General Jeff Sessions’ chief of staff, Whitaker had been involved in several questionable and controversial endeavors. He was especially critical of Mueller’s investigation.
On top of that, Whitaker had discussed different ways a U.S. attorney general could cripple the Mueller probe without having to fire the special counsel.
“I could see a scenario where Jeff Sessions is replaced with a recess appointment, and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt,” Whitaker said during a CNN interview last year.
A lawsuit filed by three Senate Democrats this week argued that Whitaker’s appointment to acting attorney general is unconstitutional. The lawsuit claims that because, unlike current Deputy Attorney General Rod Rosenstein, Whitaker has never been confirmed by the Senate. His position as Sessions’ chief of staff did not require Senate confirmation.
The lawsuit argument is very similar to the reasoning of a New York Times op-ed by George Conway, the husband of White House counsel Kellyanne Conway. Earlier this month Conway said that the Whitaker appointment violated the Appointments Clause of the U.S. Constitution.
“The flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper,” Conway wrote. “It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.”
Conway argued that appointing Whitaker as acting attorney general is especially problematic because he has the power to oversee the work of government officials that were confirmed for their positions by the Senate — despite the fact that Whitaker has never received Senate confirmation.
“We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason,” Conway wrote. “Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’ chief of staff did not require Senate confirmation… For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.”
According to Axios, Whitaker may still be in the running for the permanent Attorney General position. Trump likes him but there is internal White House opposition to his appointment because many people believe he would be very difficult to confirm. Several top House Democrats have begun an investigation of fraud charges against Whitaker when he was in the private sector.
And reportedly Trump feels no urgency to appoint a permanent replacement for Sessions and is happy with Whitaker’s current status.
If Trump is happy, it is only because he knows Whitaker is a complete “yes man” and will do whatever he is told. This could very easily lead to a true constitutional crisis if Trump directs Whitaker to interfere with prosecutions and investigations, and Whitaker complies.