Published by The Lawfare Institute
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In January 2019, I wrote an article for Lawfare in which I suggested that then United States Acting Attorney General Matt Whitaker and newly elected New York State Attorney General Letitia James should both consider recusing themselves from cases about which they commented publicly prior to taking office. Whitaker publicly prejudged the Mueller investigation that he later inherited during his short tenure as attorney general. As a private citizen when he made his remarks, it was acceptable for Whitaker to speak out, even though he was (in my opinion) absolutely wrong about the investigation. James—as a private citizen while running for state attorney general—made remarks prejudging the criminal investigation of Donald Trump and the Trump Organization. She later inherited that investigation after winning election in 2018.
That New York state investigation is back in the news after James’s office recently announced it was “now actively investigating the Trump Organization in a criminal capacity” and that it would be working jointly with the Manhattan district attorney’s office on the matter. It was acceptable for James to speak out as a private citizen and candidate but, like Whitaker, she should be accountable for her prior comments and consider recusal from a matter she publicly prejudged and inherited. Whitaker, by the way, did not recuse himself from the Mueller investigation. That was a bad call. And the last thing James should do is follow the precedent set by Whitaker.
In the criminal justice system, prosecutors have to be both objectively fair and perceived as objectively fair. One without the other is insufficient. Former President Trump has again seized on James’s comments to argue that the investigation she shepherds is unfair. I doubt it is unfair. Indeed, it strikes me as precisely the type of investigation that ought to be conducted. But her prior remarks give rise to a perception of unfairness. Every good prosecutor knows just how important that perception is.