With his choice of Matt Whitaker to replace Attorney General Jeff Sessions under fire, President Donald Trump took questions from reporters Friday morning and offered a dishonest and incoherent defense of the decision.
First off, Trump insisted he didn’t “know” Whitaker at all, in an apparent attempt to push back on criticism that he was putting a crony in the job. However, according to multiple reports, Whitaker has visited the White House, briefed Trump many times, and is well liked by the president — and certainly “known” by him.
Second, Trump tried to argue that Whitaker had been confirmed by the Senate years ago — but that Robert Mueller hadn’t been. He may have been alluding to dueling legal arguments over the constitutionality of each’s appointment. But his point made no sense on its face, since Whitaker has one old confirmation by the Senate, and Mueller has four of them.
Finally, Trump simply would not answer the question on everyone’s minds — whether he wants Whitaker to interfere with Mueller’s probe — and instead just dismissed the question as “stupid.”
None of this did anything to alleviate widespread concerns that Trump was going around DOJ’s line of succession to install Whitaker specifically so he could rein in or end the Mueller investigation.
Trump said, “I don’t know Matt Whitaker.” He does know him.
The president began by repeatedly asserting that he didn’t know Whitaker. “I don’t know Matt Whitaker. Matt Whitaker worked for Jeff Sessions,” he said. Then he repeated it: “But I didn’t know Matt Whitaker. He worked for Attorney General Sessions.”
Multiple reports suggest Trump’s claim to not “know” Whitaker is flatly false.
For one, the Washington Post reported this week that Whitaker “had briefed Trump on many occasions because the president preferred not to talk to Sessions.” And another Post report describe Whitaker being in the room while Trump ranted about Mueller.
As Sessions’s chief of staff, Whitaker met with the president in the Oval Office more than a dozen times, normally accompanying the attorney general, according to a senior administration official. When Trump complained about the Mueller investigation, Whitaker often smiled knowingly and nodded in assent, the official said.
Also, the Associated Press reported that “Trump had enjoyed Whitaker’s cable TV appearances” before he’d joined the Justice Department and that “the two men soon struck a bond.” The AP added:
Trump told associates that he felt that Whitaker would be ‘loyal’ and would not have recused himself from the Russia probe as Sessions had done, according to two Republicans close to the White House not authorized to speak publicly about private conversations.
The New York Times reported that “the president has long regarded Mr. Whitaker as his eyes and ears” inside the Justice Department, adding that Whitaker had “been a frequent White House visitor.” And Axios reported that “Trump likes and trusts Whitaker.”
So Trump’s claim to not know Whitaker appears to be an outright lie.
Trump made nonsensical points about Whitaker being Senate confirmed and not Mueller
Another major criticism of Whitaker’s appointment has been that Trump went outside the Justice Department’s line of succession to replace Sessions with someone who had not been Senate-confirmed. Indeed, George Conway and Neal Katyal argued in the New York Times Thursday that this made Whitaker’s appointment illegal and unconstitutional.
Trump attempted to fire back by insisting that, actually, the problem was that Robert Mueller wasn’t Senate-confirmed, and that Whitaker had been a while back.
“Mueller is doing a report. He hasn’t gone through the Senate process. You’re saying Whitaker hasn’t. But Whitaker has — wait a minute — because he was a really distinguished US attorney in Iowa...
...Mueller, a big complaint people have, Mueller was not Senate-confirmed. So he’s doing a report. He wasn’t Senate-confirmed. Whitaker was Senate-confirmed. He doesn’t need this, but he was Senate-confirmed at the highest level when he was the US Attorney from Iowa?”
By claiming Whitaker is Senate-confirmed and Mueller wasn’t, Trump is referring to Whitaker’s old confirmation for a US attorney job in 2004. Yet Mueller has in fact been confirmed four times by the Senate for various positions, most recently in 2011. So if Trump counts Whitaker’s old confirmation, he should have to count Mueller’s multiple old ones.
None of that really matters, because all of those confirmations lapsed — Whitaker left the US attorney job in 2009 and was out of government for eight years, while Mueller left the FBI director job in 2013. Neither count as Senate-confirmed under the current administration.
It’s also true that by the plain text of existing laws and regulations, neither of them definitively seem to need to be confirmed. Mueller’s job as special counsel is not a Senate-confirmed post. And Georgetown Law professor Marty Lederman wrote that Whitaker may qualify for an appointment as acting AG under the Vacancies Reform Act despite not being Senate-confirmed.
What Conway and Katyal are arguing is that there is a constitutional issue with appointing Whitaker as acting AG, because he wasn’t Senate-confirmed. The Appointments Clause of the Constitution, they say, requires a “principal officer” of the executive branch to be confirmed by the Senate.
Conservatives and lawyers for people involved in the Russia probe have made similar arguments about Mueller, trying to strike down his appointment by saying the Appointments Clause requires a position like his should be Senate-confirmed. But their arguments have had little success in the courts so far, in part because Mueller is not a “principal officer” — he reports to the acting attorney general, not directly to the president. (The issue is expected to make it to the Supreme Court at some point.)
Trump refused to answer whether he wanted Whitaker to rein in Robert Mueller
Finally, CNN’s Abby Phillip asked Trump, “Do you expect Matt Whitaker to be involved in the Russia probe.”
“It’s up to him,” Trump said.
“Do you want him to be involved?” Phillip followed up. “Do you want him to rein in Robert Mueller?”
But Trump didn’t answer her directly.
“What a stupid question that is. What a stupid question. I watch you a lot. You ask a lot of stupid questions,” he said.
It is, of course, not a stupid question. Regardless of the legality of Trump’s appointment of Whitaker as acting AG, there were two highly unusual things about how Trump handled Sessions’s ouster.
First, he told Sessions to leave on Wednesday rather than waiting for a successor to be confirmed. Second, rather than just following the DOJ’s line of succession and letting Deputy Attorney General Rod Rosenstein replace Sessions on an acting basis, Trump went around Rosenstein to install Whitaker, who has a reputation for being close to the White House and a long record of public comments critical of Mueller.
Then we got a series of leaks claiming both that Trump did not expect Whitaker to recuse himself from overseeing the Mueller investigation, and that Whitaker in fact wouldn’t recuse himself (according to “people close to him”).
All of this stinks to high heaven. And Trump’s comments did nothing to clear up that stink.