Criminal Justice & the Rule of Law

A Qualified Defense of Matthew Whitaker

Charlie Dunlap
Monday, November 19, 2018, 4:30 PM

Much controversy has arisen over the appointment of Matthew Whitaker as the acting attorney general.

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Much controversy has arisen over the appointment of Matthew Whitaker as the acting attorney general. Typical is the recent post on Just Security by NYU law professor Stephen Gillers, who calls for Whitaker’s recusal from overseeing the Mueller investigation because, he says, “Whitaker has repeatedly expressed hostility to any expansion of Mueller’s jurisdiction beyond the possibility of collusion between the Trump campaign and Russia.”

While news reports indicate Whitaker’s role as acting attorney general may prove to be a relatively brief one, or may be derailed on other political or even constitutional grounds (but see here and here), the broader question of recusal based on statements from before his appointment still deserves a deeper analysis, one that includes an examination of the precedent set by Supreme Court Justice Ruth Bader Ginsburg. As a sitting justice, Ginsburg levelled hostile personal attacks on then-candidate Donald Trump, but has not recused herself and continues to judge cases where he is a named party. How should we think about the ‘Ginsburg Precedent’ with respect to Whitaker and in similar cases that will inevitably arise?

Whitaker may, I know, have a deeper problem than his statements: what Democrats call his “friendship with a key witness in the [Mueller] investigation.” I am putting that issue to the side for present purposes, both because it is beyond the scope of this essay and because I find the facts currently available too gauzy to draw definitive conclusions about their implications. So I will focus on the statements alone.

Gillers does concede that as a matter of legal ethics Whitaker can properly oversee the Mueller investigation, but he also insists that Whitaker should nevertheless be recused because his “repeated expression of hostility to the Mueller investigation makes it impossible for the public to have confidence in his ability to exercise the necessary prosecutorial judgment in supervising Mueller.”

This is a curious argument. How could Gillers—or anyone—know if it would be “impossible” for “the public” to have confidence in Whitaker’s judgment? Deputy Attorney General Rod Rosenstein, the current overseer of the Mueller investigation, has said Whitaker is a “superb choice for attorney general.” Isn’t Rosenstein more uniquely positioned than anyone to give an informed assessment?

But is Whitaker disqualified simply because he’s been publically skeptical of the Mueller investigation? Would Gillers or the other critics say the same thing of someone openly supportive of Mueller’s probe? In other words, is the concern that he has expressed a view on the integrity of the investigation or is it that he has expressed a skeptical view about the integrity of the investigation?

Put another way: Are we really supposed to find a person who somehow has not expressed any views on the investigation—now in its eighteenth month—yet is still qualified to oversee it? Might such a person just have been shrewd enough to conceal his or her opinions—which could be just as intractably held as Whitaker’s views? In fact, isn’t it actually better for the public to know about Whitaker’s views, so people can then assess his supervisory actions with more insight and discernment as to whatever biases he might bring to the table?

In any event, the “public”—at least the voting portion of it—are already skeptical of the Mueller probe. According to CNN’s exit poll during the 2018 elections, 54 percent of voters believe the investigation is “politically motivated,” and a plurality (46 percent to 41 percent) disapprove of Mueller’s handling of it. Can’t a case be made that Whitaker’s view is more aligned with the “public” than not?

Regardless, haven’t we seen a sufficient degree of public acceptance of the ‘Ginsburg Precedent’ that perhaps we have already decided to tolerate strongly held, publicly-expressed views from sitting officials responsible for the administration of justice? As I explain here in some detail, given her repeated criticisms of Trump, would any reasonable observer believe Ginsburg was not prejudiced against him? In 2016 even the Washington Post felt impelled to write:

As journalists, we generally favor more openness and disclosure from public figures rather than less. Yet Justice Ginsburg’s off-the-cuff remarks about the campaign fall into that limited category of candor that we can’t admire, because it’s inconsistent with her function in our democratic system.

Shouldn’t a judge who publicly acted in a fashion “inconsistent with her function in our democratic system” with respect to a particular person, recuse herself from cases involving that same individual? At this point, is there really any doubt that she created the appearance—if not the reality—that she could not act impartially with respect to Trump?

Unlike Whittaker, who has not expressed his opinions as acting attorney general, Ginsburg expressed these views as a sitting Supreme Court justice. Nevertheless, she readily participated in judging the Trump v. Hawaii case, and—wholly predictably—acted consistently with her prior statements in joining in a dissent unambiguously hostile not merely to the challenged presidential action but to Trump as an individual.

Of course, the standard for Whitaker and Ginsburg are legally different. Indeed, we can’t forget that Supreme Court justices do not consider themselves obliged to follow the ethics rules in the same way other judges are expected to do. Here’s what I wrote elsewhere:

[I]t isn’t at all clear that the justices think they are bound by the statute, or even by the ethical code that governs other Federal judges. Writing in 2011 Chief Justice Roberts said that while the justices do consult ethical codes, “the limits of Congress’s power to require recusal have never been tested.” Thus, the mandate of 28 U.S. Code § 455 seems to be suspect in the justices’ view.

According to Roberts, “the individual Justices decide for themselves whether recusal is warranted.” He said that he had “complete confidence in the capability of [his] colleagues to determine when recusal is warranted” but admits that there is “no higher court to review a Justice’s decision not to recuse in a particular case.” Moreover, Roberts said that “the Supreme Court does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case.”

So there is no real restraint on Ginsburg or any of the other justices—short of impeachment, at least.

Moreover, the government did not move for Ginsburg recusal in the travel ban case. From the outside, it’s impossible to know why, but it may be because such efforts have historically been futile. While justices do self-recuse from time to time, the Court has not been receptive to recusal requests from parties. One 2017 analysis shows that from “2005 to the present, no Justices have recused themselves in cases where a formal recusal request was received, and where the case was subsequently decided on the merits.”

Indeed, there is no indication that Ginsburg even considered recusing herself, and virtually no one suggested that she should. I realize many commentators put Ginsburg on a pedestal, and there’s no doubt she’s accomplished much in her fabled career. There’s also no doubt that a lot of people don’t like Trump. The problem is that once recusal principles are compromised because we don’t like one of the parties, or because the particular judge happens to be immensely popular, they become compromised for everyone.

And herein lies the problem: While the recusal standards are modestly different for Ginsburg than for Whitaker, they don’t seem different in a fashion that makes it obvious—at least not to me—that Whitaker’s statements command recusal while Ginsburg’s are consistent with her sitting on cases involving Trump.

To be clear, I firmly believe if Whitaker does, in fact, harbor inflexible convictions that he can’t put aside to evaluate the investigation fairly, as he is obliged to do, then he must recuse himself. In any event, Whitaker cannot exceed what Gillers describes as the “broad but not unlimited scope of traditional prosecutorial discretion.” And Gillers is also correct when he indicates that it would be ethically (and perhaps criminally) wrong if Whitaker “quashed or crippled the Mueller investigation” for political advantage.

The question, however, is whether Whitaker can approach his new responsibilities with an open mind, notwithstanding is presumably strong prior views on a subject. It’s been done: having served in the military for several decades through multiple administrations of both parties, I’m convinced that professionals can compartmentalize their personal views and conduct their official duties in an impartial and objective way.

As a general proposition, I don’t find forthrightly expressing suspicion of the government’s prosecutorial power to be necessarily disqualifying Recall that in 2014, then FBI director James Comey said: “I believe people should be suspicious of government power. I am.” Of course, Comey was speaking in reference to the Snowden disclosures, as opposed to a particular ongoing case as Whitaker did.

Still, I think Comey made an important point about how we should think about government power. And no one suggested (nor, in my view, should they have) that he recuse himself from anything even though he was supervising an untold number of government investigations and surveillance matters. Comey’s comments are a good example of appropriate post-appointment remarks.

Beyond the Whittaker case—which, as I say, may resolve itself for any number of unrelated reasons—my real point is that we need to think about the Ginsburg Precedent. We need to think about whether we are applying it to only one side of the political spectrum. I fear we are. And I think we should be applying it non-ideologically or not at all.

In my view, we can’t—and shouldn’t—have separate rules based on ideological persuasion. If we assume that a sitting justice of the Supreme Court can put aside her personal enmity and judge a case impartially, then shouldn’t that same benefit of the doubt be applied to others, particularly where the questioned statements occurred prior to appointment?

May I also suggest that it’s quite possible for centrist (and other) members of “the public” to object to many of Trump’s actions—and to even have been initially supportive of the Mueller probe—but nevertheless now have growing concerns about the long-term implications of some of the tactics, techniques and procedures that Mueller has brought to bear? Is that really unreasonable? The CNN exit polls seem to suggest a lot of voters may possibly be feeling that way.

That’s a discussion for another time, but allow me to say that closely scrutinizing and questioning the activities of an extraordinarily formidable special prosecutor who has been extremely secretive about his activities is something we ought to demand of those public officials we depend upon for oversight.

It’s sometimes better for a democracy to have a skeptical mindset—even a rather antagonistic one—guarding the guardians. For these reasons, count me less alarmed many other commentators by Whitaker's comments.

Charles J. Dunlap is a retired Air Force major general who is currently a Professor of the Practice of Law, and Executive Director of the Center on Law, Ethics and National Security at Duke Law School.

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