With Matthew Whitaker playing Roy Cohn, DOJ could be Trump’s personal law firm

After firing Attorney General Jeff Sessions, President Trump appointed Matthew G. Whitaker, Sessions’ chief of staff, as acting attorney general.    Whitaker will now supervise the Mueller investigation, which brings to mind the proverb, “don’t set a wolf to guard the sheep.”   

Before joining the Department of Justice in September 2017,  Whitaker expressed considerable hostility to the Mueller probe, declared that there was no Russian collusion, and even suggested ways to undermine Mueller.  

{mosads}But fears for the Mueller investigation may be the least of the concerns for the future of the DOJ. The Whitaker appointment could signal the start of a Trump makeover of the DOJ into something resembling the president’s personal law firm. 

For a long time, Trump has bemoaned senior DOJ officials for putting professional, non-partisan law enforcement ahead of his own political and personal interests. 

Most memorably, in early 2018 Trump, frustrated with the failure of FBI Director James Comey to pledge personal loyalty and by Sessions’ recusal from the Mueller investigation, demanded to know, “Where’s my Roy Cohn?”  He was referring to the notorious New York lawyer who had been Trump’s longtime fixer and attack dog. In 1986, a panel of the Appellate Division of the New York State Supreme Court disbarred Cohn for unethical and unprofessional conduct; he died that same year. 

If Trump finds a Roy Cohn to run the Department of Justice, consider two extreme but plausible scenarios for justice in America that would be even more troubling than the firing of Robert Mueller.   What makes them plausible is Whitaker’s extreme views.

One is that the DOJ will vet nominees to the federal bench based on religious criteria.  In fact, the Des Moines Register ran a story in 2014 about  Whitaker’s remarks at an event in Iowa sponsored by a conservative Christian organization. Whitaker suggested the following criteria for prospective judges:  “Are they people of faith? Do they have a biblical view of justice.” When the moderator asked which Bible, Whitaker answered, the “New Testament.” He seemed not to know or didn’t care that the Constitution prohibits such religious litmus tests.

Another is that DOJ criminal investigations will be put to political purposes by focusing on Trump’s opponents. Before joining the DOJ,  Whitaker was the executive director of the Foundation for Accountability and Civic Trust (FACT), a conservative ethics watchdog.  As pointed out by Newsweek, FACT demanded investigations or ethics proceedings against, not just Hillary Clinton, but 46 Democratic politicians, individuals, and organizations from former Secretary of State John Kerry to former Sen. Evan Bayh (D-Ind.) to civil rights legend Rep. John Lewis (D-Ga.).   By contrast, FACT, which claims to be non-partisan, sought investigations of only a handful of Republicans.

Perhaps Whitaker is Trump’s Roy Cohn.  

Republican gains in the Senate may have emboldened  Trump to put Whitaker in a position to fire Mueller and begin implementing extreme law enforcement policies. In the meanwhile, Trump can search for an attorney general who passes the Trump loyalty test, which could include Whitaker. 

Once two powerful Republican senators defended the Mueller investigation against presidential interference.  But Sen. John McCain (R. Ariz.) is gone and Sen. Lindsay Graham (R-S.C.), who once said there would be “holy hell” to pay if Trump fired Sessions, has muzzled himself.  The Republican margin in the Senate has increased, which marginalizes the few remaining moderate Republican senators. 

But, as another proverb goes, elections matter.  Democratic control of the House of Representatives gives them powerful tools for calling attention to and opposing extreme law enforcement policies.  These tools include oversight hearings, control over the DOJ’s budget, and impeachment as a last resort.  

If Trump tries to shut down the Mueller investigation, vet judges based on religious beliefs, and politically weaponize the DOJ, then Democrats should use every tool at their disposal to stop him.   It would mean a huge brawl just when the country needs healing and unity.   Even so, stopping the politicization of the DOJ is very much worth a fight. 

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.”Follow him on Twitter at @gregorywallance.