The new constraints on acting Attorney General Matthew Whitaker represent a harsh reality check for a White House that helped kick-start his promotion. | Charlie Neibergall, File/AP Photo White House How Trump’s move to put a loyalist over Mueller is already backfiring Bipartisan criticism and legal maneuvering may limit Matthew Whitaker’s options as acting attorney general.

In choosing Matthew Whitaker to temporarily succeed ousted Attorney General Jeff Sessions, President Donald Trump has placed a loyal ally who has been critical of Robert Mueller’s Russia investigation in a position to oversee it.

But Trump’s move last week to install Whitaker as Mueller’s boss may already be backfiring.


The appointment has drawn bipartisan criticism and led to questions about Whitaker’s qualifications and whether he would limit the investigation or bury its findings. The state of Maryland on Tuesday filed the first legal challenge seeking to overturn Whitaker’s appointment, while on Capitol Hill newly empowered House Democrats are already making plans to have the acting attorney general appear as one of their first witnesses when the next Congress launches in January.

The uproar over the appointment, which effectively removes Deputy Attorney General Rod Rosenstein as Mueller’s primary supervisor, has put Whitaker in a difficult spot, trapped between setting off a political firestorm by clipping Mueller’s wings and angering a president intent on having him do just that.

Even Trump’s Justice Department is wavering about whether Whitaker will do the deed the president wanted him for.

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Department spokeswoman Kerri Kupec issued a statement late Tuesday signaling that Whitaker could still recuse himself from overseeing the Mueller investigation, a shift from the department’s initial position in the immediate aftermath of Sessions’ ouster that Whitaker had no plans to step out of the way on the Russia probe.

Whitaker, said Kupec, “is fully committed to following all appropriate processes and procedures at the Department of Justice, including consulting with senior ethics officials on his oversight responsibilities and matters that may warrant recusal.”

Whitaker, who in his public criticism of the Russia investigation has even invoked the president’s “witch hunt” moniker, may also find that he is limited in his ability to quash the investigation.

Andrew McCarthy, a former assistant U.S. attorney and National Review columnist who has been a vocal critic of the Mueller probe, told POLITICO he doesn't believe that Whitaker would do anything to disrupt the investigation.

“What you find when you get in, those things are very hard to untangle,” McCarthy said. “You tend to let them work the way they’re working. With Mueller, it’s such a politically fraught field, and I don’t think there’s any reason to do anything than try to move it along.”

Lanny Davis, the former Bill Clinton White House crisis manager, said that if Whitaker were to follow the president’s wishes and meddle with the Mueller probe, he would be susceptible both to legal fallout and long-term reputational problems.

“This guy is vulnerable criminally. He’s vulnerable morally. He’s just plain out vulnerable,” said Davis, who is now representing Trump’s former personal lawyer Michael Cohen in his criminal proceedings.

There is also the fact that Mueller’s investigation may be too far along to merely smother it. A Washington-based defense lawyer representing a senior Trump official in the Russia investigation said Whitaker couldn’t make decisions “based on his seat-of-the-pants preferences.”

The special counsel’s work is now into its 18th month and includes guilty pleas involving former senior Trump aides and indictments against more than two dozen Russian officials accused of sabotaging the 2016 presidential election.

Sen. Patrick Leahy (D-Vt.) told POLITICO on Tuesday: “To try to stop it when it’s nearly concluded would be a mistake.”

The new constraints on Whitaker represent a harsh reality check for a White House that helped kick-start his promotion back in August 2017. That’s when the White House counsel at the time, Don McGahn, pressured Sessions into hiring the little-known attorney as his new chief of staff, replacing Jody Hunt, who had just left to run the Justice Department’s civil division.

Sessions, stung just weeks before by a series of humiliating Trump tweets , came away from his interactions with McGahn with an impression that he had little choice but to accede to the White House’s demands, according to two sources familiar with Sessions’ thinking.

Whitaker had others pushing for his hiring, too.

The Federalist Society’s executive director, Leonard Leo, whose stock has been high in the Trump White House for his behind-the-scenes vetting of potential Supreme Court picks, recommended Whitaker to McGahn.

Trump also liked Whitaker’s cable television appearances and his attack-dog style challenging Mueller’s investigation. While working for Sessions, Whitaker used his post to engender the president’s belief that Trump had a friend in him. The two men also bonded over football — Whitaker was a tight end on the University of Iowa team that went to the 1991 Rose Bowl.

Whitaker’s promotion has been anything but smooth. Trump last Friday told reporters outside the White House that he didn’t even know the new acting attorney general, though in an Oct. 11 interview on “Fox & Friends” the president called him a “great guy,” adding, “I mean, I know Matt Whitaker.”

Some of the president’s own aides, including members of his legal team, expressed frustration on Monday that neither the White House nor the Justice Department had made any attempt to put an end to the controversy generated by Whitaker’s appointment by issuing a statement about Whitaker’s views on the Mueller probe or his role overseeing it — making clear he had no intention of curtailing it or providing some window into his thinking.

Others said that although they believed it was unlikely Whitaker would take aim at Mueller, issuing a public statement saying as much would infuriate the president, who would view it as a betrayal akin to Sessions’ initial recusal from the investigation in early 2017.

The White House did not respond to a request for comment for this article.

But Whitaker’s appointment has created anything but certainty for Trump and the Russia investigation.

The Maryland motion on Tuesday asking a federal judge to name Rosenstein the acting attorney general argues that Whitaker’s promotion violates a constitutional provision requiring Senate confirmation for top positions like attorney general.

Senate Democrats have said they’re considering their own lawsuit, and the incoming chairman of the House Judiciary Committee, Rep. Jerry Nadler (D-N.Y.), has already promised to make Whitaker the first witness when the new Congress convenes in January.

“He’s totally unqualified,” Nadler told CNN on Sunday. “And his only qualification seems to be that he wants to be — that the president wants him to be the hatchet man to destroy the Mueller investigation.”

The shakeup at Justice is also creating internal demands on its own lawyers.

The department on Tuesday was reportedly expected to finalize a legal opinion backing Whitaker’s appointment.

Mueller’s office faces its own deadline next Monday to tell a federal appellate court panel what the changes atop the department mean for a lawsuit that seeks to knock the special counsel out of his job on constitutional grounds.

Nadler on Tuesday also sent a letter to Whitaker and FBI Director Christopher Wray seeking responses to more than 100 information requests from Democratic lawmakers that have gone unanswered while the party has been in the House minority, including details about “improper communications” between the White House and Justice Department.

And Sen. Chuck Schumer (D-N.Y.), the minority leader, made clear on Tuesday the position of Senate Democrats: There are “serious questions,” he said, about whether Whitaker’s appointment — rather than that of the special counsel — is constitutional.

Burgess Everett contributed to this report.