• New Sheriff in Town

    Author : White Collar Firm December 5, 2018

    The news cycle has been busy lately – wildfires, shootings, pipe bombs and the ubiquitous shuffle of personnel within the White House have been dominating headlines. The change that affects the legal community the most is probably the resignation of Attorney General Jeff Sessions and the subsequent appointment of Matthew Whitaker to take his place. What this move means is both significant and, frankly, confusing - particularly in relation to the ongoing investigation by special counsel Robert Mueller.

    Who is Matthew Whitaker?

    He is a former U.S. district attorney and was also a tight end for the Iowa Hawkeyes football team. He played when the university made it into the 1991 Rose Bowl. As an attorney, he worked in the Southern District of Iowa for five years in the mid-2000's and became a well-respected Republican within the state. He campaigned for Rick Perry in 2012 and then ran a Senate campaign himself, where he was defeated. He's campaigned for some individuals on the Trump campaign who have since become targets of Mueller's investigation and has been a long time support of Trump.

    Why does it matter?

    Whitaker has been a vocal critic of the special investigation, writing that Mueller was dangerously close to crossing a red line in the investigation in a recent op-ed, prior to his work in the government. His new appointment means that he could easily restrain both Mueller and Deputy Attorney General Rod Rosenstein from a full, thorough investigation. He has suggested, in the past, that the Department of Justice could easily deny resources to the investigation, which would all but guarantee that the investigation would cease. Whitaker could also re-assign the current investigation team back to their previous jobs, without finalizing the investigation. Or, Whitaker could take over the supervision of the matter from Rosenstein and refuse to sign-off on subpoenas or call certain witnesses. At the very least, having a top attorney that is no longer recused from the investigation means that the White House has more access to the status of the investigation.

    Is the appointment lawful?

    That depends on who you ask. Multiple Democrats – including prominent members of the House – have criticized the appointment. Kellyanne Conway's husband wrote in an op-ed that his appointment was unconstitutional. And the State of Maryland filed a lawsuit on Tuesday which formally challenges Mr. Whitaker's position. Under AG Sessions, the administration stopped defending certain parts of the Affordable Care Act, arguing that the law became unconstitutional when Congress repealed the tax penalty for individuals who did not buy health insurance. In response, Maryland filed a suit against AG Sessions. Considering the change in circumstances, Maryland has amended its argument, contending that Whitaker has been unlawfully appointed and has no power to even respond to the lawsuit. Maryland has asked the court to determine that Deputy AG Rosenstein is instead the appropriate acting attorney general.

    The justification is that, under the Attorney General Succession Act, it is the deputy attorney general (or another AG under the designated order of succession) who must act as the attorney general until a new person can be confirmed. Critics also believe the appointment is unconstitutional, which provides that officers must be provided with the advice and consent of the Senate. Mr. Whitaker's previous position was not Senate-confirmed at the time of his appointment.

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