Acting Attorney General Matthew Whitaker has been under fire ever since he replaced Jeff Sessions, given his past comments on the special counsel probe led by Robert Mueller and the influence he has on the investigation given his office. That the special counsel investigation would remain under Whitaker’s purview, however, has not been a foregone conclusion, and at least one ethics official at the U.S. Department of Justice (DOJ) cautioned against it.

Recall: Whitaker previously described the special counsel investigation as a “witch hunt” over its focus on President Donald Trump‘s personal finances and business interests. In fact, Whitaker leveled a direct attack against the outlying limits of Mueller’s investigative authority.

Critics have suggested that Whitaker’s actual or apparent pro-White House partisanship is exactly why he was chosen to lead the DOJ at this legally perilous time for the Trump presidency. Regardless of that determination, however, the “appearance” of said partisanship was enough to concern the DOJ.

The latest reporting is that an ethics official advised Whitaker that while it was a close call, he should step aside. Why didn’t he follow that advice? https://t.co/9KhAIiTqkl — Renato Mariotti (@renato_mariotti) December 20, 2018

Los Angeles Times journalist Del Quentin Wilber noted on Thursday afternoon that an extensive review by senior DOJ officials resulted in Whitaker deciding not to seek a formal ruling from the agency’s ethics department. At least one ethics official appears to have been consulted during that extensive–though not ethics-focused–review and said it was a “close call.”

Whitaker was then advised to recuse himself from the Mueller probe out of an “abundance of caution.”

Whitaker did not take that advice.

Why? Because other senior appointed DOJ officials advised Whitaker not to base his recusal decision on the “appearance” of a conflict of interest. Whitaker accepted that recommendation–after members of his own team met with the senior ethics official in question and the ethics official said he would recommend recusal if asked to tender a formal ethics opinion.

In other words, Wilber’s reporting suggests that Whitaker assembled his own vetting team–comprised of Trump administration appointees–to test the waters for whether an ethics review might clear the acting attorney general viz. the Mueller probe. That water-testing enterprise appears not to have augured well for Whitaker’s chances because the DOJ’s senior ethics official said the “appearance” of impropriety would force him to counsel recusal. So, Whitaker and his team simply opted not to ask for an overall ethics recommendation.

In no uncertain terms, it appears that Whitaker’s team was trying to avoid a recommendation of recusal by dodging an ethics review entirely. That is, they saw the writing on the wall. Again, Wilber’s reporting:

Whitaker’s team did not want him to be the first AG to recuse himself over an appearance — versus actual — conflict of interest. So they recommended he not recuse himself. He took that recommendation. — Del Quentin Wilber (@DelWilber) December 20, 2018

The DOJ is now slated to send a letter to the Senate explaining the above decision-making process, Wilber notes.

Law&Crime reached out to the Department of Justice for comment and clarification on this story but no response was forthcoming at the time of publication.

[image via NICHOLAS KAMM/AFP/Getty Images]

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