Matthew Whitaker is now at the helm of the Justice Department, moving from chief of staff to the attorney general to acting attorney general.
The 49-year-old Republican lawyer has assumed all attorney general responsibilities after Jeff Sessions was asked for his resignation by President Trump on Wednesday, the morning after the midterm elections. Sessions’ resignation was requested via John Kelly, Trump’s chief of staff, rather than by the president himself.
In a statement late Wednesday, Whitaker said it was a “privilege” to work under Sessions, and that he looked forward to his new role.
“It is a true honor that the President has confidence in my ability to lead the Department of Justice as Acting Attorney General. I am committed to leading a fair Department with the highest ethical standards, that upholds the rule of law, and seeks justice for all Americans,” Whitaker said, adding that would work to “ensure the safety of all Americans and the security of the nation.”
Who is Matthew Whitaker?
Whitaker, an Iowa native, is 6ft 4in tall and played tight end for the University of Iowa Hawkeyes football team, appearing in Iowa’s Rose Bowl game in 1991. He served as the U.S. attorney for the Southern District of Iowa from 2004 to 2009 as an appointee of President George W. Bush.
He then was a candidate for the Republican nomination in the Iowa Senate in 2014. Whitaker did not win in the primary, and Joni Ernst went on to win the general election. Whitaker then became a managing partner of a law firm before joining the Justice Department in September 2017 as then-Attorney General Jeff Sessions’ chief of staff.
In September, it was reported that Whitaker was on the shortlist to replace then-White House counsel Don McGahn. In an interview with Fox News in October, Trump was asked about a Washington Post story that alleged he had asked Whitaker if he wanted to replace Sessions.
“Well, I never talk about that, but I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker. But I never talk about conversations that I had,” Trump said in the interview.
What can Whitaker do to Mueller?
As Mueller’s boss, Whitaker can do a handful of things to curtail his investigation, as he oversees Mueller’s jurisdiction and budget. Whitaker could direct Mueller to simply stop investigating something, or deny a request by Mueller to expand his investigation into a matter.
Whitaker could also block Mueller from certain investigative steps, like subpoenaing someone or issuing new indictments. Though Justice Department regulations for special counsels mandate that they operate with day-to-day independence, the attorney general could require him to explain “any investigative or prosecutorial step.”
As acting attorney general, Whitaker, “may conclude that [a Special Counsel] action is so inappropriate or unwarranted under established Department practices that it should not be pursued.” If Whitaker does conduct such a review, Congress must be notified.
Whitaker could also outright fire Mueller — though he can only do so due to “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
When Mueller completes his investigation, he has to deliver a report about his findings to the attorney general. If that is Whitaker at the time, he can decide whether to turn Mueller’s report over to Congress or to keep it secret. But if the latter were to happen, the Democratic-controlled House could issue a subpoena for it.
How long is Whitaker acting AG?
Whitaker will be the acting attorney general until a permanent replacement is nominated and confirmed by the Senate.
Under the Federal Vacancies Reform Act of 1998, the acting officer — in this case, Whitaker — may serve “no longer than 210 days beginning on the date the vacancy occurs,” or “once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.”
Under the FVRA, if the Senate rejects Trump’s nominee for the attorney general vacancy, then Whitaker is allowed to serve for another 210-day period. As acting attorney general, he assumes all responsibilities of the attorney general — which include oversight of special counsel Robert Mueller. Sessions did not oversee Mueller because he recused himself from the investigation due to his involvement in Trump’s presidential campaign.
Could Whitaker stay on as AG?
Only if actually nominated by Trump, but some argue that is unlikely because of his prior comments about Mueller.
[Opinion: 6 people Trump should consider to replace Attorney General Jeff Sessions]
Justice Department ethics advisers had advised Sessions to recuse himself from the Justice Department’s Russia investigation, which paved the way for Mueller’s appointment. They could advise Whitaker to do the same.
In 2016, Whitaker wrote an article for USA Today arguing that the Justice Department should indict former Secretary of State Hillary Clinton. In July 2017, Whitaker told CNN in an interview that he could see a situation where Trump could fire Sessions and appoint an acting attorney general to tighten the reigns on Mueller’s funds.
“So 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 investigation grinds to almost a halt,” Whitaker said during the interview. When he asked if that would be to whittle away at the special counsel’s resources, Whitaker responded: “Right.”
In August 2017, Whitaker wrote an op-ed for CNN titled, “Mueller’s investigation of Trump is going too far.”
“It is time for Rosenstein … to order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel,” Whitaker wrote last year.
“If he doesn’t, then Mueller’s investigation will eventually start to look like a political fishing expedition. This would not only be out of character for a respected figure like Mueller, but also could be damaging to the President of the United States and his family — and by extension, to the country,” he wrote, adding that Trump and his family finances should be off-limits to the special counsel.
If not Whitaker, then who?
Among the names floated:
- Janice Rogers Brown, a former federal appeals judge
- Bill Barr, attorney general under former President George H.W. Bush from 1991 to 1993
- Steven Bradbury, Transportation Department general counsel
- Alex Azar, Health and Human Services secretary
- John Sullivan, deputy secretary of state
- Noel Francisco, current solicitor general
- Chris Christie, a former federal prosecutor and governor of New Jersey, who once said he wanted to be AG
- Kris Kobach, hardline conservative Kansas secretary of state who just lost a bid to become the state’s governor
Other administration officials who have been already confirmed by the Senate could be appointed by Trump, thus bypassing the Senate.
A replacement could face an uphill battle for Senate confirmation
If the person Trump nominates is not already Senate-confirmed, Trump may face an uphill battle when the GOP-led Senate has to approve his new attorney general nominee. WIth a likely 53 to 47 majority in the Senate, however, he has more room for maneuver that he did before the election when the majority was just 51 to 49.
Over the summer, when rumors again swirled that Sessions was out, Republican senators were opposed to the idea of confirming someone new. “I don’t see the president being able to get someone else confirmed as attorney general were he to fire Jeff Sessions,” Sen. Susan Collins, R-Maine, told reporters in August. In a series of tweets, Collins said Mueller “must be allowed” to finish probe.
“It is imperative that the Administration not impede the Mueller investigation. I’m concerned Rod Rosenstein will no longer be overseeing the probe,” Collins said. Mueller “must be allowed to complete his work without interference” regardless of who is the attorney general, she said.
From the Senate floor in August, Sen. Ben Sasse, R-Neb., also signaled that he could vote against another attorney general nominee if Sessions was to be fired. “I find it really difficult to envision any circumstance where I would vote to confirm a successor to Jeff Sessions if he is fired because he’s executing his job rather than choosing to act as a partisan hack,” Sasse said.
“We already have an attorney general,” said Majority Whip John Cornyn, R-Texas, in September. “I love my job.” Through a spokesman in September, Sen. Mike Lee, R-Utah, also said he wanted to remain a senator in September.
“Assuming that the Democrats voted together against the nominee, I think you would have some Republicans who may well vote against the new nomination,” said Sen. John Kennedy, R-La., also said at the time.
Sen. Lindsey Graham, R-S.C. — who predicted Sessions would be out post-midterms — has said he does not want the job. “No, no, no,” he said Tuesday night in an interview on NBC News when asked if he wanted to be attorney general. Graham has been one of the top names floated as Sessions’ replacement.
“The one thing this does make certain is that the Mueller investigation into Russian meddling in elections will continue to its end, as it should, because no new Attorney General can be confirmed who will stop that investigation,” said Sen. Lamar Alexander, R-Tenn.
