When politics comes to the Department of Justice, justice loses

A year’s worth of presidential tweets foretold former Attorney General Jeff Sessions’ fate: Trump ousted him before the dust from the midterms could settle. Rather than follow succession protocol and appoint Deputy Attorney General Rod Rosenstein as the Acting Attorney General, Trump bypassed Rosenstein to install a relative unknown, former Iowa U.S. Attorney Matthew Whitaker.

Having spent 24 years at the Department of Justice as a federal prosecutor, I didn’t think Trump could reach any lower than Sessions, but it appears Whitaker was hiding in the false-bottom of the president’s barrel of applicants. Whitaker has already been sized-up as the most partisan federal law enforcement chief in recent memory. 

Where to begin?  

In 2007, while he was the Republican-appointed U.S. Attorney in Iowa, Whitaker prosecuted Matt McCoy, a young Democrat and Iowa’s first openly gay lawmaker who was on the rise in local politics. McCoy got into a financial dispute with a security firm he’d consulted for and demanded money he was owed. Whitaker brought the FBI in and charged McCoy with using his elected office to extort money. At the trial, Whitaker’s case went down in flames and the jury quickly returned a not guilty verdict. 

While a prosecutor is ethically bound to make charging decisions only on the facts and law, Whitaker often spoke at Christian Coalition events saying “God’s hand” guided him, according to Iowa state senator McCoy. McCoy recently said his two year fight against Whitaker’s charges ruined him financially and emotionally and he is convinced being a Democrat and an openly gay lawmaker is what motivated Whitaker’s decision to charge him. The Des Moines Register ran a column suggesting the same.

After Whitaker left the U.S. Attorney’s Office, he took a paid position on the advisory board of a Florida company that is now under FBI investigation and that the Federal Trade Commission says “bilked thousands of consumers out of millions of dollars.”

According to court documents obtained by the Miami New Times, when people tried to get their money back, Whitaker used his position as a former federal prosecutor to scare them off. He told one disgruntled customer that filing a complaint with the Better Business Bureau could result in “serious civil and criminal consequences.”

Whitaker also became a pundit. Last year, he authored an article slamming Special Counsel Robert Mueller’s Russia investigation as “going too far.” Whitaker did this without ever reviewing the evidence in Mueller’s possession. With his appointment as Acting Attorney General, Mr. Whitaker now will be in charge of the very investigation he trashed.

What might he do?

In a 2017 interview with CNN, Whitaker said: “I could see a scenario where Jeff Sessions is replaced with a recess appointment and that attorney general doesn’t fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt.” Despite the public clarity of Whitaker’s plan, the President told Fox’s Chris Wallace he had no idea his new Attorney General had any position on Mueller’s Russia probe.

Equally disturbing is a Vox report that Whitaker had privately counseled the President on how to build a criminal case against political adversary Hillary Clinton.

Every sign along Whitaker’s road to Attorney General is neon red and flashing conflict of interest.

Federal prosecutors have the power to begin or end an investigation against someone. They have the power to charge someone with a crime. 

The most basic qualification for admittance to the Justice Department has always been a steadfast impartiality. That ensures DOJ’s investigative lens is focused on the evidence of a crime and not the vessel in which the criminal is packaged. 

For attorneys at the Department of Justice, every day brings opportunities to do the wrong thing. During my more than two decades at DOJ, day in and day out, I watched my colleagues do the right thing. When I left four years ago, I was confident that would not change.  

I’m less sure now. Not because I have any less confidence in the prosecutors who man the trenches, but because their new commander is not fit to serve. 

Michael J. Stern was a federal prosecutor for more than 24 years with the Department of Justice in Detroit and Los Angeles, prosecuting high-profile crimes, including conspiracy cases related to international drug trafficking and organized crime. He has since worked on the indigent defense panel for the federal courts.