Hans von Spakovsky: Acting AG Matt Whitaker has no conflict of interest and no reason to recuse himself

Under the ethics regulations that apply to Justice Department lawyers, Acting Attorney General Matt Whitaker has no conflict of interest. Hence, he has no ethical or legal obligation to recuse himself from supervising Special Counsel Robert Mueller.  The demands that he do so are expressions of political theater with no factual or legal basis.

Whitaker is being criticized for having voiced an opinion about Mueller’s investigation into allegations of collusion between the Trump campaign and the Russian government.  For example, on Nov. 11, Sen. Chuck Schumer, D-N.Y., Rep. Nancy Pelosi, D-Calif., and other congressional Democrats wrote the Justice Department’s designated agency ethics officer, complaining about Whitaker saying on June 9, 2017, that the “evidence was weak” and that there was no “criminal obstruction of justice charge to be had.”  But Whitaker was legally correct then, and he is still correct today, about both of those assertions.

Why? Because to date, the special counsel has publicly disclosed absolutely no evidence of any collusion between the Trump campaign and the Russians.  The indictments released so far by the special counsel go to great lengths to point out that the alleged actions of Russian agents to use social media to inflame public opinion in 2016 were done without the knowledge of any individuals in any presidential campaign.  In fact, the Russians used false and stolen identities to impersonate Americans.

Not only is the evidence of any supposed collusion “weak,” it is nonexistent.

Furthermore, according to two separate opinions issued in 1973 and 2000 by the Justice Department’s Office of Legal Counsel, a sitting president cannot be criminally indicted or charged.  The 1973 opinion said a president cannot be prosecuted due to his “unique position under the Constitution.”  The 2000 opinion added that, under our constitutional structure, only the House of Representatives “has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment.”  Thus, according to Justice Department policy, neither Donald Trump nor any other president can be indicted for “criminal obstruction of justice.”

Whitaker’s impartiality cannot be questioned when the opinions he voiced agreed—and still agree—with the facts and the law.  

Some legal scholars disagree with those opinions.  However, the regulations under which Mueller was appointed require him to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.”  Thus, Mueller can’t file any obstruction of justice charges against Trump, no matter what he finds.

Once again, Whitaker was correct: there is no “criminal obstruction of justice charge to be had” here.

Whitaker has also been criticized for questioning Russian “interference” in the 2016 election.  Certainly, the special counsel’s failure to publicly produce any evidence of collusion justifies some skepticism. Furthermore, Jeh Johnson, President Obama’s Secretary of Homeland Security, stated that there was “no evidence” of any tampering in the 2016 vote count by the Russians or anyone else.  Although Whitaker was voicing his personal opinion, that opinion to date has not been shown to be wrong.

All of these statements were made when Whitaker was not a government official and had no access to any of the nonpublic evidence gathered by Mueller. And none of these statements comes even close to requiring Whitaker to recuse himself under applicable regulations.  He has no conflict of interest as outlined in those regulations because neither he nor any member of his family has any personal or financial interest in the outcome of the Mueller investigation.

Some have reached even further to claim conflict, citing Whitaker’s support of Sam Clovis in a 2014 state political race.   Clovis, who cochaired the Trump campaign, has not been accused of any wrongdoing.  There is no evidence that, as required by the applicable regulation (28 CFR 45.2), that Clovis was “substantially involved in the conduct that is the subject of the investigation.”  In fact, Mueller hasn’t turned up any unlawful conduct by the Trump campaign related to the election.

Whitaker’s impartiality cannot be questioned when the opinions he voiced agreed—and still agree—with the facts and the law.

The demands for recusal are baseless. Whitaker should be given the chance to do his job.