Of all the ways in which Donald Trump’s presidency has made America worse, nothing epitomizes it quite so fully as the elevation of Matthew Whitaker as acting attorney general of the United States. Intellectually honest conservatives — the six or seven who remain, at any rate — need to say this, loudly. His appointment represents an unprecedented assault on the integrity and reputation of the Justice Department, the advice and consent function of the Senate, and the rule of law in the United States.
How so? A first-pass list:
Unqualified. Until this week, perhaps the least qualified attorney general in living memory was Alberto Gonzales, who served unhappily in George W. Bush’s second term before he resigned under a legal cloud. Yet Gonzales could still be credited for service in the Air Force, a Harvard law degree, four years of service as White House counsel, and a two-year stint as a justice on the Texas Supreme Court.
That makes Gonzales the intellectual equivalent of Oliver Wendell Holmes, Jr. next to Whitaker, whose legal credentials include a little more than a year at the Justice Department as Jeff Sessions’s chief of staff, a couple of unsuccessful political runs in Iowa, a stint as a U.S. attorney, and work at regional law firms. Never in the history of the Justice Department has so much rested on the shoulders of someone who can boast of so little.
Shady. Kudos to Brittany Shammas of the Miami New Times for breaking the story that Whitaker served as a paid board member of World Patent Marketing, which was shut down in May by a federal court in Florida and ordered to pay a $25 million settlement following a complaint by the Federal Trade Commission that it was a business scam. Whitaker wrote at least one bullying email to a customer who threatened to complain to the Better Business Bureau about the company’s business practices.
Now it turns out that the Miami office of the F.B.I. is conducting a criminal investigation of World Patent Marketing. This would be the same F.B.I. that Whitaker oversees in his new job.
A hack. Also shady is the conservative “watchdog” group FACT, or Foundation for Accountability and Civic Trust, which Whitaker ran from a mostly virtual Washington address to gather dirt on Hillary Clinton, Merrick Garland and other G.O.P. enemies. This isn’t illegal. It’s just scummy and disreputable and indicative of the world Whitaker inhabited before his sudden elevation.
A crackpot. Whitaker was asked in 2014 to name “some of the worst decisions in the Supreme Court’s history.” He did not mention Dred Scott v. Sandford, the worst decision ever. He did not mention Plessy v. Ferguson, the second worst. He didn’t even mention Roe v. Wade or Griswold v. Connecticut, the abortion cases reviled by the Christian right to which he belongs.
Instead, he named Marbury v. Madison, which, he lamented, made the Supreme Court “the final arbiter of constitutional issues.” This is not a quarrel with a ruling. It is an objection to the system. We have an acting attorney general who does not believe in the Constitutional order of which he is the chief legal officer.
Barely legal. I’m not fully convinced by the argument made in a Times op-ed by Neal Katyal and George Conway (Kellyanne’s better half) that Whitaker’s appointment is unconstitutional because the acting A.G. has not been confirmed for the job by the Senate. Among other questions, their argument rests too heavily on a concurrence written by Clarence Thomas in a case involving an appointment to the National Labor Relations Board.
But if Whitaker’s appointment is legal thanks to the Vacancies Reform Act, it’s, ahem, barely legal. Acting A.G.’s are typically placeholders, previously confirmed to deputy-level positions, who serve in office for a few days pending Senate approval of a successor. Whitaker is being installed for what could be a seven-month term, and perhaps twice as long. A Republican Senate that allows a Republican president to evade its advice and consent function licenses every future president to do the same.
Dangerous. Democrats are concerned about what Whitaker’s elevation means for Robert Mueller’s investigation. They’re right to be. Whitaker’s public record of aggressive hostility to the Mueller probe disqualifies him from overseeing it. If he does not recuse himself from the role, the Democratic House should immediately move to impeach him. The Senate isn’t likely to convict, but let Republicans own this fiasco.
It says something about how atrocious this appointment is that even Trump is now distancing himself from Whitaker, falsely claiming not to know him despite the latter’s repeated Oval Office visits. It’s the Michael Cohen treatment. When a rat smells a rat, it’s a rat. Only a Republican in 2018 could fail to notice.
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