Matthew Whitaker's time as Acting United States Attorney General, from November 7, 2018, to February 14, 2019, was a period marked by significant scrutiny, particularly concerning his oversight of the Special Counsel investigation led by Robert Mueller. Appointed by President Donald Trump following the resignation of Jeff Sessions, Whitaker stepped into a role that immediately drew attention due to his previous public criticisms of the Mueller probe.
His appointment sparked debates about its legality and constitutionality, leading to several legal challenges and calls for transparency regarding his actions within the Department of Justice.
Assuming the Role and Supervising the Special Counsel
Upon Jeff Sessions' resignation on November 7, 2018, Matthew Whitaker was appointed Acting Attorney General under the Federal Vacancies Reform Act of 1998. In this capacity, he assumed direct supervision of Robert Mueller's Special Counsel investigation. This investigation had previously been overseen by Deputy Attorney General Rod Rosenstein, who took on the role due to Attorney General Jeff Sessions' recusal. Whitaker's new position placed him at the helm of one of the most politically charged investigations in recent U.S. history.Prior to joining the Department of Justice as Jeff Sessions' chief of staff in September 2017, Whitaker had publicly expressed critical views of the Mueller investigation. During a six-month period in 2017, he insisted there was no obstruction of justice or collusion, criticized the initial appointment of the special counsel, and labeled the probe as "political." He also published an op-ed titled "Mueller's Investigation of Trump Is Going Too Far," where he expressed skepticism and called Mueller's appointment "ridiculous." He even retweeted an article that referred to the investigation as a "lynch mob." Despite these prior statements, Justice Department ethics officials advised Whitaker that no financial, personal, or political conflict required him to recuse himself from supervising the Russia investigation. Whitaker chose not to recuse himself, stating he did not want to be the first attorney general to recuse himself based on statements made in the news media.
Legal and Constitutional Challenges to the Appointment
Whitaker's appointment as Acting Attorney General faced several unsuccessful legal challenges. On November 16, 2018, attorney Tom Goldstein filed a motion with the U.S. Supreme Court on behalf of a Nevada resident, asking the court to determine whether Rod Rosenstein, rather than Whitaker, was the statutory and constitutional successor to Sessions in a pending lawsuit. The Supreme Court denied this motion on January 14, 2019.The U.S. Department of Justice's Office of Legal Counsel (OLC) issued an opinion in 2018 asserting that Whitaker's appointment was constitutional due to its temporary nature. The OLC cited historical precedents, noting that an assistant attorney general not confirmed by the Senate had served as acting Attorney General in 1866. Furthermore, the OLC pointed out that individuals not confirmed by the Senate had served as principal officers in an acting capacity more than 160 times between 1809 and 1860, and at least nine times during the Trump, Obama, and Bush administrations.
Congressional Scrutiny and Investigation Integrity
During his tenure, Whitaker faced pressure from Congress regarding the integrity of the Special Counsel investigation. Democrats, poised to assume chairmanships of key House committees in January 2019, warned the Justice Department and other departments to preserve all records related to the Mueller investigation and Sessions' firing. Republican Senators Susan Collins, Jeff Flake, and Senator-elect Mitt Romney also issued statements emphasizing that Mueller's investigation must remain free from interference.In February 2019, Whitaker testified before Congress, stating that he had not interfered in any way with the special counsel investigation. This assertion was later corroborated in July 2019, when Special Counsel Robert Mueller himself testified before Congress and confirmed that there had been no interference with his investigation. This testimony helped to address concerns about potential political influence over the probe during Whitaker's leadership.
Beyond the Special Counsel: Other Initiatives and Transition
Beyond the high-profile oversight of the Mueller investigation, Whitaker also initiated the implementation of the First Step Act. This bipartisan criminal justice bill enacted several changes in U.S. federal criminal law, aiming to reform federal prisons and sentencing laws. The goals of the act included reducing recidivism, decreasing the federal inmate population, and maintaining public safety.Whitaker's term as Acting Attorney General concluded on February 14, 2019, when William Barr was sworn in as Attorney General. Following this, Whitaker transitioned to a role as a senior counselor in the Office of the Associate Attorney General, a position he held until his resignation from the Justice Department on March 2, 2019. His period as Acting Attorney General remains a notable chapter in the history of the Department of Justice, characterized by intense legal and political debate surrounding the independence of federal investigations.
