U.S. Special Counsel Robert Mueller could challenge the appointment of Matt Whitaker as acting attorney general by saying that his predecessor, Jeff Sessions, didn’t leave voluntarily but was forced out by the president, a former federal prosecutor said.
President Donald Trump promoted Whitaker to run the department after Sessions submitted a resignation letter Wednesday at Trump’s request. Although Sessions had recused himself from the probe into Russian interference in the 2016 campaign, Whitaker will now assume oversight of the investigation, a duty that had fallen to Deputy Attorney General Rod Rosenstein.
But Mueller could argue in court that Trump effectively fired Sessions after months of verbal abuse, a legal concept known as a constructive discharge, said Renato Mariotti, a former federal prosecutor who is a frequent Trump critic.
Under the Federal Vacancies Reform Act, Trump can appoint an acting official without Senate confirmation if he replaces someone who has been incapacitated or resigned. It doesn’t apply if the previous official was fired. Sessions began his resignation letter by saying he was leaving at Trump’s request.
“The question is whether he was constructively fired, which means he didn’t resign from his post,” Mariotti said. “I don’t know the answer as to how the courts would view that.”
Someone with legal standing to raise such a challenge “could be Mueller himself,” Mariotti said. “That would be one obvious person.”
Mariotti is a vocal Trump opponent who wrote a September New York Times article titled “Trump Can’t Help Obstructing Justice. Who Will Stop Him?”
Another unknown is whether Whitaker may have any conflicts of interest that would lead to a recusal from overseeing Mueller’s probe. Whitaker chaired the campaign of an Iowa politician, Sam Clovis, who went on to join Trump’s election team and has reportedly been a subject of interest in Mueller’s probe.
Whitaker directed a non-profit group that promoted “accountability, ethics and transparency in government” and was described as a counterweight to liberal watchdog groups. Among its targets were Hillary Clinton and Supreme Court nominee Merrick Garland. Whitaker collected more than $650,000 in 2015 and 2016 working for the group, the Foundation for Accountability and Civic Trust. He then worked at the Justice Department as Sessions’s chief of staff.
Legal experts agree it would be difficult to remove Whitaker from a post he can hold for seven months under the law. He can’t be appointed permanently, and Trump said he would nominate someone else formally at a later date.
“It’s not clear whether a firing would allow Trump to appoint him as an interim,” said Barbara McQuade, a former federal prosecutor who teaches law at the University of Michigan. Assuming Sessions voluntarily resigned, she said, “it’s permissible for Trump to make this interim appointment.”
“I don’t see any reason why Whitaker would not be the one to supervise the Mueller investigation and take it out of the hands of Rod Rosenstein,” she said.
Several other lawyers concurred. Robert Litt, a former general counsel to the office of the Director of National Intelligence, said he believed that the Sessions letter amounted to a voluntary resignation, rather than a firing, even though his departure came at Trump’s request.
The Justice Department, though a spokesman, declined to comment.
‘Beyond the Scope’
Whitaker is now in a position to decide how Mueller’s investigation will proceed. He has already signaled that he sees clear limits to the special counsel’s authority. In an article for CNN in August 2017, Whitaker said that if Mueller investigates the finances of Trump and his family -- and not just Russia’s role in the 2016 campaign -- “that goes beyond the scope of the appointment of the special counsel.”
For Whitaker to remove Mueller, he must find “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause,” according to the law on special counsels.
On Wednesday, several Democratic congressional leaders called for Whitaker to recuse himself from the Mueller investigation because of his past commentary. A couple of key Republicans, Susan Collins and Mitt Romney, joined them in expressing concerns about the investigation’s future.
Whitaker has given no indication that he sees a conflict in his past work, including with Clovis.
"It depends on what role Clovis has in the investigation," said Litt. "If Mueller believes there is a reason for Whitaker to recuse himself, he can bring it to his attention."
The Justice Department has its own ethics office that could review whether Whitaker has any conflicts, according to another former federal prosecutor.