WASHINGTON— Acting Attorney General Matt Whitaker has no intention of recusing himself from overseeing the special counsel probe of Russian interference in the 2016 election, according to people close to him who added they do not believe he would approve any subpoena of President Trump as part of that investigation.
Since stepping into his new role on Wednesday, Whitaker has faced questions — principally from Democrats — about whether he should recuse from the Russia investigation, given that he has written opinion pieces in the past about the investigation, and is a friend and political ally of a witness.
On Thursday, two people close to Whitaker said he has no intention of taking himself off the Russia case.
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Ethics officials at the Justice Department are likely to review his past work to see if he has any financial or personal conflicts.
In many instances, that office does not require a Justice Department official to recuse, but suggests a course of action. In the past, senior Justice officials tend to follow such advice, but they are rarely required to do so, according to officials familiar with the process.
A Justice spokeswoman declined to comment. Officials there have said Whitaker will follow the regular procedure in handling any ethics issues that arise.
In 2014, Whitaker chaired the campaign of Sam Clovis, a Republican candidate for Iowa state treasurer.
Clovis went on to work as a Trump campaign adviser and has become a witness in the investigation by Special Counsel Robert Mueller.
Meanwhile, the New York Times reported that Whitaker once espoused the view that the courts “are supposed to be the inferior branch” and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.
In a candidate Q&A when he sought the Republican nomination for senator in Iowa in 2014, Whitaker indicated that he shared the view among some conservatives that the federal judiciary has too much power over public policy issues.
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He criticized many of the Supreme Court’s rulings, starting with a foundational one: Marbury v. Madison, which established its power of judicial review in 1803.
“There are so many” bad rulings, Whitaker said. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues.”
Whitaker lost the 2014 primary to Joni Ernst, who went on to win election to the Senate. But on Wednesday, he vaulted to power when President Trump fired Attorney General Jeff Sessions and appointed Whitaker as the acting attorney general, putting him in charge of the Justice Department.
His criticism of Marbury aligned with the view of some conservatives that the case — or at least how it came to be interpreted — gave the courts too much power to strike down laws.
But Whitaker also criticized famous decisions in which the Supreme Court declined to strike down laws that conservatives do not like, from 1930s cases involving President Franklin D. Roosevelt’s New Deal programs to the 2012 case in which the court declined to strike down President Barack Obama’s health insurance law.
Laurence Tribe, a Harvard Law School constitutional law professor, said that Whitaker’s expressed views of the Constitution and the role of the courts “are extreme and the overall picture he presents would have virtually no scholarly support” and would be “destabilizing” to society if he used the power of the attorney general to advance them.
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Ethics officials might advise Whitaker that his commentary created the appearance of a conflict of interest and leave the decision to him.
If they recommended forcefully that he recuse himself and he declined, Whitaker could then be referred to the Justice’s Office of Professional Responsibility, and his license to practice law could be put at issue.