Acting Attorney General Matthew Whitaker once argued that an American president had such broad executive power that they could order any federal investigation be stopped without obstructing justice.
Simultaneously criticizing the Supreme Courts power of judicial review while criticizing cases where it declined to strike down laws regulating economic and health insurance matters was a sign of an internally contradictory and ignorant philosophy, Mr. Tribe said. Because the attorney general oversees decisions about which laws the Justice Department will defend and can decide which ones not to enforce, he said, Mr. Whitakers views were likely to have faced sharp scrutiny even from Republicans in a confirmation hearing.
In a 2017 interview on The David Webb Show, first reported by Mother Jones, Whitaker argued that, amid reports Trump had asked former FBI Director James Comey to drop an investigation into former national security adviser Michael Flynn, there was no case for obstruction of justice regardless of President Donald Trumps motives because the president is entitled to make such calls with his inherent authority.
Mr. Whitakers criticism of Marbury aligned with the view of some conservatives that the 1803 case — or at least how it came to be interpreted — gave the courts too much power to strike down laws. But Mr. Whitaker also criticized famous decisions in which the Supreme Court declined to strike down laws that conservatives do not like, including 1930s cases involving President Franklin D. Roosevelts New Deal programs and the 2012 case in which the court declined to strike down President Barack Obamas health insurance law.
The interview came shortly after Comey was fired by Trump and while Whitaker, then the head of a conservative nonprofit group, was a regular commentator on right-leaning media.
There is no case for obstruction of justice because the president has all the power of the executive and delegates that to people like the FBI director and the attorney general, Whitaker argued. The president could, and has in our nations history, said stop investigating this person or please investigate this other person.
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He continued: This hyperventilation of what we see here is not sustainable based on these facts.
Sessions’ resignation, in a one-page letter to President Donald Trump, came one day after Republicans lost control of the House of Representatives and was the first of several expected post-midterms Cabinet and White House departures. Though Sessions was an early and prominent campaign backer of Trump, his departure letter lacked effusive praise for the president and made clear the resignation came “at your request.”
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Whitaker has already come under fire for deeply critical views of special counsel Robert Muellers probe that hed made in the past. In an interview with CNN in 2017, he argued that the inquiry could be kneecapped if the attorney general just reduces his budget so low that the investigation grinds almost to a halt. In a separate editorial for CNN, he wrote that Muellers team had already gone too close to a red-line during the scope of the probe.
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It is time for Rosenstein, who is the acting attorney general for the purposes of this investigation, to order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel. Whitaker wrote. If he doesnt, then Muellers investigation will eventually start to look like a political fishing expedition.
Into Sessions’s office has stepped Matthew Whitaker, who before becoming the attorney general’s chief of staff was a political commentator on news programs, heard criticizing Mueller’s probe, calling it a dangerous overreach. He suggested on CNN in 2017 that a temporary AG could halt the investigation by choking off its funding. He also opined that investigating Trump’s finances would be a “red line,” according to the Washington Post. He urged Rod Rosenstein, the number two attorney in the AG’s office and the Justice official who oversaw Mueller and his team in Sessions’s stead, to limit their scope.
Some prominent legal scholars have already lambasted the choice of Whitaker, including George Conway, the husband of White House adviser Kellyanne Conway. In an op-ed for The New York Times on Thursday, George Conway argued that the appointment was unconstitutional and accused the president of seeking to evade requirements that an attorney general be confirmed by the Senate.
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Its illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid, Conway wrote with former acting U.S. Solicitor General Neal K. Katyal.
Whitaker is legally allowed to serve as acting attorney general for no more than 210 days under the Vacancies Reform Act but could be in the post longer while another individuals nomination is pending, according to the Times.