Criminal Justice & the Rule of Law

Someone at the Justice Department Wants Ethics Advice on Whitaker’s Supervision of the Mueller Investigation

Scott R. Anderson, Benjamin Wittes
Friday, December 7, 2018, 2:30 PM

Yesterday evening, we received a response to one of our FOIA requests asking whether anyone has sought or received internal ethics guidance on Whitaker’s involvement in the Mueller investigation.

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Yesterday evening, we received a response to one of our FOIA requests asking whether anyone has sought or received internal ethics guidance on Whitaker’s involvement in the Mueller investigation. That response—which we shared with the Washington Post—came from the Justice Department’s Professional Responsibility Advisory Office (PRAO), an office that, as its name implies, provides Justice Department employees with guidance on complying with the broad array of professional standards that apply to lawyers, including those relating to conflicts of interest.

Our request asked for three categories of documents: (1) any requests PRAO had received for guidance on Whitaker’s involvement in the Mueller investigation; (2) any guidance PRAO provided in response; and (3) any authorizations or determinations that PRAO has in its possession regarding Whitaker’s involvement in the Mueller investigation. PRAO responded that it had located three documents totalling thirteen pages in length that were all responsive to both (1) and (2), but no documents responsive to (3).

PRAO refused to disclose the responsive documents on the grounds that they are “intra-agency communications protected by the deliberative process, attorney work product and attorney-client privileges” covered by exemption 5 to the FOIA—a position that’s not entirely unexpected. And while it may be a bit risky to read too much between the lines—particularly as the PRAO would not necessarily be the lead office in responding to ethical concerns about Whitaker’s activities—we may still be able to infer a bit about what may be happening inside the Justice Department.

The fact that someone has asked for and received ethics guidance on Whitaker’s involvement in the Mueller investigation is itself telling. While the Justice Department spokesperson indicated that Whitaker intended to seek such guidance shortly after his appointment, Whitaker and his office have since been close-lipped about what actual steps they’ve taken. We can’t tell from PRAO’s response whether the requests it received were from Whitaker himself or from other parties, or whether they came before or after Whitaker’s appointment as acting attorney general. But the fact they exist confirms that professional Justice Department attorneys have most likely weighed in on whether Whitaker’s involvement in the Mueller investigation is proper in some capacity.

Even more telling, perhaps, is the fact that the PRAO found no documents responsive to item (3) of our request. Relevant Justice Department regulations often require employees to recuse themselves from matters where they have a potential conflict of interest unless they receive authorization from senior Department officials or those officials make a determination that the conflict of interest concerns do not warrant such action. One regulation, for example, bars an employee from participating in a criminal investigation where he or she has a personal or political relationship with an involved person or organization unless a supervisor determines that the relationship in question will not affect the investigation or create the appearance of a conflict of interest. Another regulation requires Justice Department employees to recuse themselves from investigations involving people with whom they have a close personal or financial relationship unless they receive authorization from a designated agency official.

Now we don’t know how these regulations apply in practice to the (acting) attorney general—that’s actually the subject of another one of our FOIA requests. But former Attorney General Jeff Sessions felt that at least one such regulation limited his relationship with the Mueller investigation, leading to his fateful decision to recuse himself. If relevant ethics officials gave Whitaker the same advice (which seems likely) and he nonetheless insisted on supervising the Mueller investigation, then we might expect one of these authorizations or determinations. The fact that PRAO does not have any may simply mean that it was not among the offices that received them. But it may also be a sign that they do not exist. And if that’s the case, it may mean that Whitaker is, at least thus far, limiting his interactions with the Mueller investigation more than he has let on—or that his approach to relevant ethical restrictions may depart severely from that of his predecessor.

Of course, the PRAO’s response only paints part of the picture. At least one other office we submitted a FOIA request to, the Departmental Ethics Office, plays a more central role in ethics and conflict of interest issues than the PRAO and thus may have even more relevant records in its possession. We also sent a request to the Office of the Attorney General, which would presumably be in receipt of any guidance received or authorizations or determinations issued. And we asked some pointed questions for any records that describe how Whitaker views Sessions’s own decision to recuse himself and his own ethical obligations more broadly. We’re still waiting on responses from all of these offices, and will be sure to post what we receive once it’s in hand.

Until then, below is the response we received from the PRAO:

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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