Sliding Matthew Whitaker into the role of acting attorney general must have looked like the perfect move to Donald Trump. After all, the whole way that Whitaker moved from Iowa-bound has-been to America’s chief law enforcement officer was by writing anti-Mueller op-eds, heading up an anti-Mueller propaganda effort, and appearing on television to spread an anti-Mueller gospel. What better person to supervise Robert Mueller? Only … maybe there could be an issue.
In a conversation with reporters on Friday morning, Donald Trump claimed “I don’t know Whitaker” and insisted that “I didn’t speak to Matt Whitaker” about Mueller. Which is amazing, since multiple accounts had indicated that Whitaker, a scam artist and bully, had an “easy rapport” wit Trump. Months ago, the New York Times singled out Whitaker as someone who was not just “ascendant” in the Department of Justice, enjoying the support of both Trump and John Kelly, but actually Trump’s mole in the organization.
To the White House, he was an obvious choice: a confident former college football player and United States attorney whom Mr. Kelly has privately described as the West Wing’s “eyes and ears” in a department the president has long considered at war with him.
Why “former college football player” should appear on the resume of any candidate for the attorney general’s role is an open question. What’s not in question is that Trump met with Whitaker on multiple occasions, pumping him for details of what was happening at Justice and counting on him to keep watch on then-Attorney General Jeff Sessions and deputy Rod Rosenstein.
He has frequently visited the Oval Office and is said to have an easy chemistry with Mr. Trump. On Monday morning, Mr. Trump himself called Mr. Whitaker, not with an explicit job offer but a reassurance that he has faith in him.
That he now says he doesn’t know the man he dropped into Justice as his personal spy could just be more of Trump’s reflexive lying—but it could also be a sign that he realizes this scheme isn’t going so well.
Trump did defend Whitaker against claims that his appointment was unconstitutional.
“He was confirmed at the highest level. So don’t talk to me about Whitaker.”
Except … no. No he wasn’t. His role in the U.S. Attorney’s office for Iowa never put Whitaker in front of the Senate. He hasn’t been confirmed.
And as the last few days have shown, he has a background …
- Working with a scam company selling nonexistent “world patents” that took customers for their life savings and used Whitaker to threaten customers who complained.
- He disobeyed a court order to pay back funds he received from that scam when it was forced to settle with the FTC.
- Whitaker used his position as a U.S. attorney to launch a months-long, politically-motivated effort to set up Iowa’s first openly gay senator and a rising Democratic star—one that the Des Moines Register called “a witch hunt.”
- And, despite Trump’s claims, Whitaker’s appointment is unconstitutional. So says George Conway in the New York Times.
It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.
Every action Whitaker takes as acting AG will be open to challenge. Under any other president and any other Supreme Court, that’d be hugely significant. It’s less so today, given the Trumpification of the judiciary and the composition of the Supreme Court. This is yet another scenario in which Trump’s banking on his judicial appointees to validate his executive misdeeds.
Considering that Whitaker considers those judicial appointees to be members of “an inferior branch” of government, they may not be eager to agree with him. On the other hand, Trump appears to have no trouble locating toadies. Trump-appointed judges may well give Whitaker a pass on following the Constitution, right up to a thumbs up from Brett.
On the other hand, Trump has demonstrated multiple times that he believes loyalty is strictly a one-way street. With Democrats ready to force the issue on the legality of the appointment, Whitaker may find that he has to look for another spot in the lucrative Republican political welfare system—even if he is a former football player.