In William Barr, Donald Trump Has Finally Found His Roy Cohn.
—THE NATION
HAVING SECURED THE APPOINTMENT OF TWO SUPREME Court justices, Trump went about cleaning up his own Department of Justice—or rather cleaning out people who weren’t Trump loyalists.
That was his idea of “draining the swamp.”
Trump’s lawyers, particularly his private lawyers, told him that he could do anything he wanted to do at the Department of Justice.
Private lawyer William Barr, who had previously served as attorney general under President George H. W. Bush, wrote a memorandum for defense lawyers in the Mueller investigation arguing much the same: the president could not be criminally charged for obstructing his own executive branch investigation by firing people in the Justice Department. The president’s executive power over the Justice Department was near absolute.
Barr—touting this extreme version of unitary executive theory—had interviewed with Donald Trump to be his personal attorney in the investigation. Barr was never paid for any of this work, but he was clearly looking for an appointment of some sort. Trump obviously liked Barr’s views on executive power and eventually found a job for him.
But first, on November 8, 2018, Trump, desperate to find a way to submarine the Mueller investigation, after firing Jeff Sessions, appointed Matthew Whitaker to be acting attorney general.
Whitaker, who in 2004 had been appointed United States attorney for the Southern District of Iowa by George W. Bush, had helped run Texas governor Rick Perry’s presidential campaign in 2012. Whitaker ran for the US Senate in 2014 and lost. That same year, he was a paid advisor for World Patent Marketing, a company shut down by federal regulators for cheating customers out of $26 million. Before the 2016 election he had been paid over $900,000 to head a nonprofit organization, FACT, that focused almost exclusively on the “unethical” conduct of Hillary Clinton. Where FACT got its dollars (assuming they raised dollars rather than rubles) is not known. Nonprofit organizations, even very political ones, do not need to disclose their donors.
Whitaker had been Jeff Sessions’s chief of staff. He had publicly auditioned for the appointment to replace Sessions by criticizing the Mueller investigation on CNN, calling it a lynch mob “going too far.” He suggested the investigation could be closed down by “starving it of resources.” He also said that if Mueller investigated the president’s finances, it “would raise serious concerns that the special counsel’s investigation was a mere witch hunt.”
Whitaker in July 2017 appeared as a legal commentator on CNN and mused about whether Trump might fire Sessions and appoint a temporary replacement.
“That temporary replacement,” Whitaker said in one of his commentaries, “could move to choke off Mueller’s funding. 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 also wrote an op-ed piece for CNN entitled “Mueller investigation of Trump is going too far,” in which he urged Rod Rosenstein to “limit the scope of the investigation.”
Whitaker scoffed at the idea that Trump had done anything wrong during his Trump Tower meeting with the Russians.
“You would always take the meeting,” Whitaker said. He apparently saw no difference between a meeting with an American industry group or union, and a meeting with Russian agents promising to deliver dirt on an opponent.
Whitaker was fishing for a new job.
Apparently, Trump felt Whitaker’s history was perfect for his personal attorney general.
Under most circumstances Rod Rosenstein, the deputy attorney general, should have been appointed. But Rosenstein was honest and he wasn’t loyal, and Trump didn’t want that. Whitaker got the appointment instead, even though he had never been confirmed by the Senate for any position in the Trump administration (under the Vacancies Act, an acting cabinet-level appointment is supposed to be granted to someone who has been confirmed by the Senate for whatever position they currently hold, but this legal “technicality” was simply ignored).
On November 14, 2018, in an interview on the Daily Caller, Trump was asked who he might nominate to be the new permanent attorney general.
Naming Whitaker, Trump said, “As far as I’m concerned this is an investigation that never should have been brought. It’s an illegal investigation.”
Democrats saw his appointment as part of Trump’s “pattern of obstruction.”
When asked, Trump denied he had ever read or heard about Whitaker’s criticism of the Mueller investigation.
“There is no collusion,” said Trump. “He happened to have been right. I think he’s astute politically. He’s going to do what’s right.”
The reaction was swift and harsh.
“In appointing Matthew Whitaker as acting attorney-general,” commented Steve Denning in Forbes magazine, “President Trump again risks appearing to obstruct justice in plain sight.”
Commented Denning, “If President Trump had taken these steps in secret, they would have constituted elements for a complaint of obstructing justice. The fact that they were done in plain view of the public doesn’t make them any less questionable.”
A top Justice Department official who refused to identify himself said he and a group of four Justice Department officials met with Whitaker three times to advise him on the ethics and transition to the job. The advice was to recuse himself out of an “abundance of caution.”
Whitaker refused.
Conservative lawyer George Conway and former acting solicitor general of the United States Neal Katyal wrote an editorial in the New York Times saying that Trump’s appointment of Whitaker was unconstitutional under the appointment clause of the Constitution, which provides:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Whitaker was not a “principal officer,” who reports directly to the president because he had never been confirmed by the Senate to any position. Because he was not a principal officer, his appointment to be acting attorney general would have to be ratified by the Senate.
As a result, said Conway and Katyal, anything Whitaker did as acting attorney general would be invalid. The two lawyers concluded, “We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Session’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation [from the Bush administration] to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.”
Commentators also wondered what Whitaker would do with the Mueller Report once Mueller submitted it to the Department of Justice. Would Trump’s handpicked errand boy give the report over to Congress, or to Trump’s television lawyer, Rudy Giuliani? Would Whitaker edit the report with “redactions” before allowing Congress to see it? Would he ignore a subpoena from the House of Representatives seeking the full unredacted report?
In Trump’s war with the FBI and the Justice Department to avoid being impeached, his opponents realized he would take any steps necessary to protect himself from the Mueller investigation. But with Conway and other lawyers checkmating him with unassailable arguments under the Vacancies Act and the Constitution, the Whitaker appointment was a bridge too far.
Trump’s plan to hire Whitaker for his “inside job”—undermining the Mueller investigation from inside the Justice Department—was not going to work.
After three weeks of listening to the harsh conclusions of Whitaker’s critics, Trump decided to pick someone else, and on December 8, 2018, he named William Barr to the post.
Barr had already been the attorney general under George H. W. Bush from 1991 to 1993. He was widely respected in Washington, at least among Republicans, and his confirmation by a Republican Senate was just about a sure thing. Mueller had served as an assistant attorney general in charge of the criminal division when Barr was attorney general. Barr was the perfect person to try to rein in Mueller.
And Barr appeared more than willing to do just that. Barr had written an op-ed in the Washington Post defending Trump’s right to fire Jim Comey. Barr argued that since Comey, the FBI director, wasn’t really in charge of the investigation, which was the responsibility of the Justice Department, “Comey’s removal simply has no relevance to the integrity of the Russian investigation as it moves ahead.”
Barr had offered other negative comments about the investigation. He noted that a number of Mueller’s prosecutors had made contributions to the Democratic Party. In 2017, in a conversation with the Washington Post, Barr said that “prosecutors who make political contributions are identifying fairly strongly with a political party. I would have liked Mueller to have more balance in this group.” No mention of the fact that Mueller himself was a Republican who had worked with Barr in a Republican administration.
Barr also said that the Clintons should have been investigated for their ties to a uranium mining firm that had benefited from a decision Hillary Clinton made while she was secretary of state. The Justice Department was wrong, he said, for not investigating her. Red meat for Donald Trump and Fox News.
In fact, Barr was already working on the Mueller investigation—for the defense. After Trump fired James Comey, Barr wrote a twenty-page memo, circulated to the defense lawyers representing targets of the Mueller investigation, saying that Trump could not be found to have obstructed justice when he fired the FBI director. Barr wrote that it was “quite understandable that the administration would not want an FBI director who did not recognize established limits on his power… Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction. Apart from whether Mueller has a strong enough factual basis for doing so, Mueller’s obstruction theory is fatally misconceived.”
Barr had actually interviewed with Trump to join his private defense team, and very likely would have been offered that position if Trump had not preferred to hire Barr to help him handle the investigation from the inside. And that could most effectively be done from inside the Department of Justice itself.
Observers noted that when President George H. W. Bush in 1993 pardoned six men convicted of offenses as part of the Iran-Contra investigation, Barr approved. He clearly knew how to handle pardons—including the preemptive pardons that Trump might need to reduce the likelihood of cooperating witnesses in the Mueller investigation.
Barr, because he had already been attorney general, could easily be confirmed by the Senate, and in his public statements and his actual work for the defense team in the Mueller investigation, could be counted upon to execute Trump’s plan for an “inside job.”
With Barr firmly in place as attorney general—in effect Mueller’s boss for the length of the investigation—Trump’s plan to obstruct the investigation would be complete.
At his Senate confirmation hearing on January 12, 2019, Barr said forcefully that he intended to leave Mueller alone to finish his investigation and that he would bring it to the public after it was written. “It is in the best interest of everyone—the president, Congress, and, most importantly, the American people—that this matter be resolved by allowing the special counsel to complete his work.”
He added: “I will follow the special counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to finish.”
He then backtracked by repeatedly telling the Senate Judiciary Committee that he was committed to making as much information public as he can about Special Counsel Mueller’s investigation. Barr suggested that what would eventually be released might not be Mueller’s report or even a redacted version of it, but instead a report from the attorney general on what the special counsel had concluded.
“Under the current regulations, the special counsel report is confidential, and the report that goes public would be a report by the attorney general,” Barr told lawmakers.
Those caring about the rule of law were horrified, but it was music to President Trump’s ears.
But it was wrong.
As attorney general, Barr should not have had anything to do with the Mueller investigation. He had already participated as a lawyer on the side of the defense; he had written a detailed memo for the defense lawyers, and had even interviewed with Donald Trump himself to join that team. It was unconscionable that Barr would now be allowed to supervise the prosecution and decide what to do with Mueller’s report. That would be the ultimate inside job. Both federal ethics rules (5 CFR Section 2635.502) and American Bar Association ethics rules for lawyers (Model Rule 1.11(d)) specifically address this issue by requiring recusal of a government lawyer in these circumstances.
The government lawyer must recuse from an investigation or other party matter in which he has already participated in the private sector unless the conflict is waived by a supervisor or someone else with authority to waive the conflict.
And of course there’s the rub. Barr’s supervisor was none other than Donald Trump. And Trump was more than happy to waive the conflict. Ethics experts cried foul, saying that Donald Trump, as a target of the Mueller investigation, could not give Barr this consent, and that agency ethics lawyers instead should be heeded. But the Senate did not care and confirmed Barr anyway without any promise from him to recuse from the Mueller investigation.
In sum, not only could Trump fire FBI directors and attorneys general in order to stop the Mueller investigation, but he also could order his new attorney general to switch sides from working for the defense to supervising the prosecution.
Why? Because Trump is president. Many of Trump’s supporters embrace the view that a president—under an extremely broad interpretation of the unitary executive theory championed by conservative constitutional law scholars whenever a Republican is president—can do just about anything he wants.
If he wants, he can be an American Nero.