President Donald Trump’s firing of Attorney General Jeff Sessions has pushed the capital into new and more perilous terrain. What the president desires — protection from the special counsel’s investigation and its consequences — seems clear enough. What’s unknown is whether Congress and the Department of Justice, two pillars of American democracy, will bend to Trump’s will.
Matthew Whitaker, whom Trump appointed acting attorney general on Wednesday, has questionable job qualifications. A former U.S. attorney and failed Republican political candidate in Iowa, Whitaker is said to have caught the president’s attention by disparaging the investigation of special counsel Robert Mueller. The legality of his appointment without Senate confirmation is also in dispute. The Constitution requires that principal officers of the executive branch receive such confirmation (although temporary appointments can be made under certain conditions).
To date, Mueller’s investigation into Russian sabotage of the 2016 election and any criminal links to the Trump team has resulted in some three dozen indictments or guilty pleas — including pleas from top Trump aides Paul Manafort and Rick Gates and former White House national security adviser Michael Flynn.
In his new role, Whitaker will supervise Mueller’s inquiry, which affords him a variety of means to influence it. He could, for example, fire Mueller, an outcome Trump has long desired. He could impede the investigation, or end it altogether. He could restrict the scope of the report that Mueller delivers to him on the investigation, or bury it in the department without a public airing.
This disturbing menu of options has prompted calls for Whitaker to recuse himself from the investigation, as Sessions properly did. But it seems unlikely that Trump would have appointed Whitaker only to see him follow the ethical course that precipitated Trump’s fury with Sessions in the first place.
To keep the special counsel investigation on track, and the rule of law intact, both the Justice Department and Congress must assert themselves. The department has deeply ingrained ethical norms to prevent the kind of crass politicization that Trump seeks. It is incumbent upon department leaders and rank and file lawyers alike to defend those standards against assault. Senior department officials must let Whitaker know that the price of capitulation to Trump’s inappropriate demands, now or in the future, will be an institutional, and highly public, revolt.
Congress, too, knows its responsibility. In April, a bipartisan bill to protect the Mueller investigation passed in the Senate Judiciary Committee. It would allow a special counsel who’s been fired to challenge the action in federal court, and require that documents relevant to the investigation be preserved.
At the time, Senate Republican leader Mitch McConnell refused to bring the bill to the floor for a vote. Such partisan gamesmanship on a vital matter was irresponsible last spring. It’s intolerable now.
Trump has moved the nation into a danger zone, with the apparent goal of subverting efforts to collect evidence, establish facts and hold wrongdoers accountable. If duty means anything to McConnell and House Speaker Paul Ryan, they must safeguard the rule of law by protecting the special counsel.
