Acting Attorney General Whitaker Will Be Out In 210 Days: He Can Be Held Accountable During His Short Service
There is a federal law that governs how vacant / open positions get filled when a federal government official, dies, resigns, is fired, or incapacitated. This Vacancy Act will only allow Whitaker, the new Acting Attorney General, to stay in his post for 210 day (7 months).
The president will then need to nominate a new attorney general, who must be approved by the Republican-controlled Senate. The filibuster was removed by the Senate for these types of appointments, so a majority vote (51 votes) is all that is needed. However, there will be an open and public confirmation hearing, on TV, for whoever is nominated. Democrat Senators will grill the nominee, under oath, as to potential conflicts of interest, his or her views on whether a sitting president can be indicted while in office, and other matters of intense public interest.
In the interim, while Whitaker is there, he will not recuse himself, in my opinion, because Trump’s entire fury directed at former AG Sessions stemmed from his decision to recuse himself from the Russia investigation (on recommendation of the ethics personnel in the Justice Department). Whitaker may get a Justice Department ethics recommendation to recuse himself from the Russia investigation, but he need not follow that recommendation.
After January 1st, when the Democrat controlled Congress is sworn in, they can subpoena Whitaker and place him under oath, on TV, on the following issues (and more):
- His apparent conflict of interest due to negative statements he previously made about the Russia investigation on radio shows and in media interviews. This could either pressure him to recuse himself, or, make him a publicly known non-legitimate actor regarding the investigation and taint any of his activities. There are also possible court challenges or criminal investigations regarding his conduct. Remember that President Nixon’s Attorney General actually went to prison for such activities;
- His dealings with President Trump over the last number of months, while he was Chief of Staff to Sessions, including his views on the Russia investigation and any tacit agreement to curtail the investigation. Any such activity by Whitaker and Trump expose both of them to Obstruction of Justice criminal; charges. We would see if Whitaker lies about this, exposing him to perjury charges, or tells the truth and exposes himself to Obstruction of Justice criminal charges in the event that he did engage in such discussions with Trump. Mueller can subpoena anyone in the White House — and the FBI can question them under penalty of a felony for lying to the FBI — who may have witnessed any of the conversations and been in meetings with Whitaker and President Trump, prior to Whitaker’s appointment to the acting AG position. Recall that the FBI already, under Mueller’s direction, has interviewed numerous former and current White House officials — and he will do it again, now. Whitaker will likely have the FBI knocking on his door, just like they did to former criminally convicted National Security Adviser Mike Flynn (now facing jail for lying to the FBI).
The bottom line is that there are MANY legal options for the FBI agents and Mueller’s legal staff. There are also MANY tactical options available to the committees in the House of Representatives after January 1st.
There will be a separate blog post on this site regarding Whitaker’s possible attempts to hinder or terminate Mueller and / or the entire Mueller investigation.