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OPINION | PHILIP HEYMANN AND WILLIAM RUCKELSHAUS

With Whitaker, another test of the rule of law

Mary Altaffer/AP Photo

Acting Attorney General Matthew Whitaker

By Philip Heymann and William D. Ruckelshaus  

The Department of Justice has concluded that the president acted legally in appointing Matthew Whitaker as acting attorney general. But it has declined to comment on the illegality of President Trump putting Whitaker in charge of supervising the special counsel investigating Russia’s role in the 2016 presidential election.

We were there more than four decades ago, dealing with the Watergate scandal. At that time, the government already had a system for the use of special prosecutors for politically charged investigations. Its vital purpose was to meet the threat to our national faith in the rule of law, even when it was challenged by great political power. In the current situation there are allegations that the Trump presidential campaign supported foreign interference with the 2016 election and then obstructed efforts to find the facts.

The law protecting these investigations includes two critical roles for the attorney general: (1) He appoints a special prosecutor (or special counsel); (2) only for extremely serious and obvious prosecutorial abuse could the attorney general legally take steps, reviewable by the Congress, to rein in the prosecutor.

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This would assure that the attorney general would obey the rules despite having been picked by the president whose actions were being questioned. This is done in two ways: by the clarity of the federal regulations for a special prosecutor or counsel, reinforced by the process of the attorney general’s Senate confirmation and the oversight of both judiciary committees; and, of vast importance to this case, a federal statute and regulation demanding obedience to familiar rules of conflict of interest — the very laws that former attorney general Jeff Sessions found demanded his recusal in the special counsel Robert Mueller’s investigation into Russian meddling.

The recusal statute orders the attorney general to promulgate regulations “which require the disqualification of . . . any officer or employee of the Department of Justice . . . from participation in a particular investigation or prosecution if such participation may result in a . . . political conflict of interest, or the appearance thereof.”

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The regulations promulgated by the Department of Justice under this statute state simply that “no employee [of the Department of Justice] shall participate in a criminal investigation or prosecution if he has a . . . political relationship with: any person . . . substantially involved in the conduct that is the subject of the investigation or prosecution; or any person . . . he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

A “political relationship” is defined as including any “close identification with an elected official . . . arising from service as a principal advisor thereto.”

This, then, is the legal and political framework forbidding the president’s selection of Matthew Whitaker to supervise the Mueller investigation. Whitaker plainly has a political relationship with “a person” (Trump) who is “substantially involved in the conduct that is the subject of the investigation.” This relationship is disqualifying for the attorney general except in the extraordinary situation when participation “would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.”

This last concern is all the more disabling when one considers the obvious criterion for Whitaker’s selection for the job and method of appointment without Senate questioning in a confirmation hearing: his repeatedly demonstrated willingness to politicize and obstruct the investigation — his willingness to ignore the law that Sessions had so angered the president by following.

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Meanwhile, we have seen a stunningly obvious year-long attempt by a frightened president to shut down this carefully designed system before its results can be made known — indeed to destroy the structure and its claim to support our trust in the power of the law to bind even the politically powerful. Who wins this contest is of vast importance.

When Trump asked for Sessions’ resignation, it was to create a temporary vacancy that the president could fill without Senate confirmation — a step that the Constitution requires as a check on presidential appointment power — or the accompanying public hearings that would surely explore and reveal serious charges of business fraud by Whitaker and his open hostility to the investigation he would supervise. He could, while in his “acting” capacity, question and disrupt Mueller’s efforts as well as, more importantly, hide Mueller’s findings from the public.

The scheme was clever, except in overlooking the last hurdle to using Whitaker to disrupt the Mueller investigation and hide its findings. Any participation by Whitaker was simply, flatly, and legally forbidden by the federal statute and the federal regulation. He is disqualified from overseeing the ongoing investigation of his boss, President Trump.

Perhaps the America we know could survive this cynical and illegal attempt to obstruct and undermine critical structures designed almost a half-century ago to assure the public that high officials too must obey the law. If the nation allows its president to ignore the solemn statutory and regulatory prohibitions of political conflicts of interests in the Justice Department, the result would be far less faith in the oversight powers of Congress, far more fear of politics that could ignore, for example, even a brutal murder, and far more of the spiraling cynicism that increasingly divides and weakens us.

Philip Heymann, professor emeritus at Harvard Law School and deputy attorney general under president Bill Clinton, was associate special prosecutor to Watergate prosecutor Archibald Cox. William D. Ruckelshaus served as acting director of the Federal Bureau of Investigation and as deputy attorney general in 1973. He resigned that post on Oct. 20, 1973, rather than carry out a presidential order to fire Cox.