It is a profoundly dangerous moment

There are conflicting streams of thought, or maybe I just mean of talk, about whether or not Trump can get away with kneecapping the Mueller investigation right in plain sight. Some people – including lawyers – are saying he can’t, he can’t, he can’t, and others are saying like hell he can’t. Jeffrey Toobin was exasperatedly emphatic voicing the latter on CNN last night. Others are emphatic that he can’t, but they seem to mean just morally speaking, not that it’s literally impossible. It seems to be the case that Trump can get away with it if nobody stops him, and that it’s not at all clear that anyone can stop him. It’s hard to get clarity about it because so many people are muddling up the meaning of “can.”

Lawfare has a six-author post on the subject by Mikhaila FogelSusan HennesseyQuinta JurecicMatthew KahnAnushka LimayeBenjamin Wittes.

The firing of Jeff Sessions and his replacement on an interim basis by a man who has expressed open hostility to the Mueller investigation and in whose loyalty President Trump has expressed confidence marks a major moment in the course of the Russia investigation.

It is a profoundly dangerous moment: The president fired the attorney general, as he once fired the FBI director, for plainly illegitimate reasons: because the attorney general acted appropriately on an investigative matter in which Trump himself has the deepest of personal interests. Trump does not even pretend there are other reasons. He removed the attorney general because the attorney general did not protect him from investigation. Yes, the president has the raw power to do this. But as was the case with the firing of James Comey, it is an abuse of the power he wields.

There it is in a nutshell, what I’m trying to figure out. He has the raw power but it’s an abuse of that power.

It’s not reassuring.

Trump obviously thinks the whole point of power when he has it is that he can abuse it to get whatever result he wants. Nothing else has any meaning to him.

Jeff Sessions has now left his post as attorney general and has been replaced on an acting basis by a man about whom a significant measure of anxiety is only prudent.

In other words be scared shitless because Whitaker is going to let Trump abuse his raw power to his vestigial heart’s content.

The immediate question is whether Whitaker will seek to impede the Mueller investigation. His public statements on the subject, to put the matter mildly, do not inspire confidence. Here’s a sampling:

  • As the Washington Post noted on Oct. 10—when it reported that Trump had spoken with Whitaker about assuming Sessions’s role—Whitaker argued in a op-ed that any investigation by Mueller into the finances of Trump and his associates could be a “red line.”
  • A month before his CNN op-ed was published, Whitaker said on the network that “I could see a scenario where Jeff Sessions is replaced by a recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations [sic] grinds to almost a halt.”
  • He defended Donald Trump Jr.’s 2016 meeting with a Russian lawyer in Trump Tower, saying that he would have taken the meeting as well.
  • Immediately after Trump fired James Comey as FBI director, Whitaker penned an opinion article in the Hill defending the dismissal and making the case against the appointment of a special counsel.
  • While Whitaker’s Twitter account is mostly about football, he tweeted a link to an article referring to the Russia investigation as a “lynch mob” in August 2017
  • He also criticized the special prosecutor’s search of the home of former Trump campaign chairman Paul Manafort as “designed to intimidate”

But maybe he’ll be forced to recuse himself?

Like Sessions, Whitaker may be obligated to recuse himself from the Mueller investigation. The relevant Justice Department guideline is Section 45.2 of Title 28 of the Code of Federal Regulations, which states that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with” either “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

Although the regulations do not indicate that Whitaker’s public statements alone necessarily require recusal, Whitaker has other connections to people whose conduct is at issue in the matter. For instance, the regulations define a political relationship as “a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof.” Rebecca Ballhaus of the Wall Street Journal reports that Whitaker chaired the 2014 Iowa state treasurer campaign of Sam Clovis, who went on to serve in the Trump campaign and administration and who, Ballhaus notes, is now a grand jury witness in the Mueller investigation. The Des Moines Register reported Whitaker’s chairmanship of Clovis’s campaign during the campaign itself. What’s more, in a text message to Ballhaus after Whitaker’s appointment, Clovis wrote that he was “proud of my friend,” referring to Whitaker, raising the question of whether there is a personal relationship as well.

There is an important process point here: Under the same Justice Department regulation mentioned above, Whitaker is obligated to seek guidance from career ethics attorneys regarding whether he should recuse. This is the process Jeff Sessions used in determining that the rules required that he recuse, and Deputy Attorney General Rod Rosenstein also sought guidance regarding his obligations, though Justice officials determined that his recusal was not required. If Whitaker either does not obtain an ethics opinion from career officials or if he departs from that guidance, that would be a serious red flag. Notably, the Washington Post reports that Trump “has told advisers that Whitaker is loyal and would not have recused himself from the investigation.” This raises a question about whether the president knows something about Whitaker’s intentions regarding recusal.

That was yesterday; today the Post reports (as we’ve seen) that Whitaker says no way will he recuse himself. So that will be a serious red flag.

Ok so what does that mean? It seems to me he’s already a serious red flag, but then what? Can anyone do anything about it?

Apparently not.

But if Whitaker does not recuse and actually supervises the investigation, he will be able to interfere with it if he chooses to do so.

Well he’s not going to recuse, so he will be able to interfere with it.

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