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Whitaker should recuse in Mueller probe, ethics official says in about-face

In this Nov. 21, 2018 photo, Acting Attorney General Matthew Whitaker, framed by a photograph of lower Manhattan, addresses law enforcement officials at the Joint Terrorism Task Force in New York. (Mary Altaffer / Associated Press)
In this Nov. 21, 2018 photo, Acting Attorney General Matthew Whitaker, framed by a photograph of lower Manhattan, addresses law enforcement officials at the Joint Terrorism Task Force in New York. (Mary Altaffer / Associated Press)
By Devlin Barrett and Matt Zapotosky Washington Post

WASHINGTON – A senior Justice Department ethics official concluded acting attorney general Matthew Whitaker should recuse himself from overseeing special counsel Robert Mueller’s probe examining President Donald Trump, but advisers to Whitaker recommended the opposite and he has no plans to step aside, according to people familiar with the matter.

The latest account of what happened underscores the high stakes and deep distrust – within Congress and in some corners of the Justice Department – surrounding Whitaker’s appointment to become the nation’s top law enforcement official until the Senate votes on the nomination of William Barr to take the job. Earlier in the day, a different official, who spoke on the condition they not be named, said ethics officials had advised Whitaker need not step aside, only to retract that account hours later.

Within days of the president’s announcement in early November that he had put Whitaker in the role on a temporary basis, Whitaker tapped a veteran U.S. attorney to become part of a four-person team of advisers on his new job, including the question of whether he should recuse from Mueller’s investigation because of his past statements regarding that probe, and his friendship with one of its witnesses, according to a senior Justice Department official.

Whitaker never asked Justice Department ethics officials for a recommendation, nor did he receive a formal recommendation, this official said.

However, after Whitaker met repeatedly with ethics officials to discuss the facts and the issues under consideration, a senior ethics official told the group of advisers on Tuesday that it was a “close call,” but Whitaker should recuse to avoid the appearance of a conflict of interest, the official said. Whitaker was not present at that meeting, they said.

Those four advisers, however, disagreed with the ethics determination and recommended to Whitaker the next day not to recuse, saying there was no precedent for doing so, and doing so now could create a bad precedent for future attorneys general.

However, when Eric Holder became the attorney general in 2009, he decided to recuse himself from overseeing the investigation of former presidential candidate John Edwards. Holder’s reasoning was that he had been part of Barack Obama’s vice-presidential search committee that considered Edwards. In that case, Holder did not consult Justice Department ethics officials before deciding to recuse.

The senior official who described the Whitaker discussions refused to identify the particular Justice Department employees involved.

Typically, ethics officials make recommendations that Justice Department employees are expected to follow, but the final decision on whether to recuse over an appearance of a conflict of interest was always Whitaker’s to make, according to past and current officials.

Whitaker has decided not to recuse from the Mueller case, and a letter to that effect is expected to be sent to Senate Minority Leader Charles Schumer, D-N.Y., possibly later Thursday.

So far, Whitaker has not received any briefings on the Mueller investigation, but he may at some point, the senior Justice Department official said.

As the agency’s top official, Whitaker had been supervising Mueller and was recently notified in advance of a key guilty plea in the case.

The back-and-forth inside the department points to the conflicting views and allegiances surrounding its leadership during the Trump administration – a time when the president has publicly attacked federal law enforcement.

The circumstances leading up to Whitaker’s rejection of the view of his department’s ethics office are likely to spur renewed criticism from Democrats, who have already challenged the legality of Trump decision to appoint a Justice Department staffer who has not been confirmed by the Senate to succeed Jeff Sessions, whom the president forced out Nov. 7.

Rep. Adam Schiff, D-Calif., said the Justice Department’s ethics opinion should be shared with Congress, adding, “DOJ officials must avoid not only actual impropriety but the appearance of impropriety.”

Before coming to the Justice Department to serve as Sessions’ chief of staff, Whitaker was a TV legal commentator who wrote and spoke frequently about the Mueller probe – almost always in critical ways. He suggested on CNN that he could envision a scenario where Sessions was replaced and his successor “just reduces 1/8Mueller’s 3/8 budget to so low that his investigation grinds to almost a halt.”

The ethics controversy surrounding Whitaker could also have consequences for his chosen successor, Barr.

Now in private practice, Barr has similarly made public comments that are skeptical of Mueller, and this week, the Senate Judiciary Committee released a memo he sent to the Justice Department criticizing the special counsel for a “fatally misconceived” legal theory of how Trump may have obstructed justice.

The document, first reported by the Wall Street Journal, is sure to intensify the fight over Barr’s confirmation. Senate Judiciary Committee Chair Dianne Feinstein, D-Calif., said Thursday the memo was “very troubling” and that she would be asking questions about it. Democrats might try to force Barr’s recusal before as a condition of confirming him, though Republicans will still control the Senate next year.

Whitaker’s comments were more prolific and more blunt. He wrote in a piece for the news organization that Trump was “absolutely correct” to suggest Mueller would be crossing a red line by examining the finances of Trump and his family.

Speaking about the June 2016 encounter at Trump Tower – where Jared Kushner, Donald Trump Jr. and others met with a Russian lawyer promising dirt on Hillary Clinton – Whitaker said: “To suggest that there’s a conspiracy here, I mean, you would always take that meeting.”

An audio recording has circulated online in which Whitaker expresses doubt about any Russian interference in American politics.

“The left is trying to sow this theory that essentially Russians interfered with the U.S. election. Which has been proven false. They did not have any impact in the election,” he said.

Sessions had been recused from Mueller’s probe, which has examined possible coordination between the Trump campaign and the Kremlin, because he was a part of the campaign. That left Deputy Attorney General Rod Rosenstein, who appointed Mueller, in charge.

But when Trump fired Sessions and replaced him with Whitaker, Whitaker took command of the Russia investigation. He intimated to associates that he had no intention of recusing. Sessions, after all, was fired in part because the president was frustrated he had stepped aside.

Democrats and others expressed alarm about Whitaker’s past views, fearful he might stifle Mueller’s work. The special counsel regulations call for him, as acting attorney general, to be notified of significant events in the probe, and give him the ability to veto steps he considered “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” If he does that, though, he would be required to notify Congress at the end of the case.

Last month, the special counsel’s office notified Whitaker in advance that former Trump lawyer Michael Cohen was going to plead guilty to lying to Congress about a possible Trump business project in Moscow.

Asked about his own role in the Mueller probe at a news conference Thursday, Rosenstein said, “We’ve continued to manage the investigation as we have in the past, and it’s being handled appropriately.”

Some legal analysts had dismissed Whitaker’s public comments about the Mueller probe as essentially uninformed speculation that would not likely force him to step aside. Whitaker did, though, have a relationship with Sam Clovis, a Trump campaign adviser who has testified before the grand jury in Mueller’s case.

In 2014, Whitaker chaired the campaign for Clovis when he ran as a Republican candidate for Iowa state treasurer. Clovis told The Washington Post that he still considered Whitaker a friend.

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