Matthew Whitaker: The Ethical Mire of Trump’s Top Law Officer

News summary:

When Acting Attorney General Matthew Whitaker accepted the role of overseeing the Mueller investigation, he failed to disclose to Department of Justice ethics officers that, as head of a conservative watchdog group, he had cooperated with senior White House aides of President Trump in finding ways to attack the work of the special counsel—in one case by filing a Federal Election Commission complaint against a critic of Paul Manafort, Trump’s former campaign manager who was under scrutiny by Mueller.

If Whitaker had revealed these directions from the White House and his actions on Trump’s behalf, Justice ethics officers would almost certainly have advised him that his continued oversight of the special counsel would violate ethics rules. According to a senior Justice official with knowledge of the matter, Whitaker may face investigation by the department’s inspector general over his omission.

As the confirmation hearing for Whitaker’s permanent replacement as attorney general begins, senators will want to know from President Trump’s nominee, William Barr, what action he will take to prevent similar efforts by the White House to interfere in and frustrate the special counsel’s investigation.

In August 2017, Acting Attorney General Matthew Whitaker, who then headed a conservative advocacy group, the Foundation for Accountability and Civic Trust, more commonly known by its acronym FACT, filed a complaint with the Federal Election Commission alleging that the Democratic National Committee and one of its consultants had violated federal election law. Whitaker’s complaint claimed that the DNC and a Ukrainian-American political strategist named Alexandra Chalupa had broken the law when she met with officials at the Ukrainian Embassy in Washington, D.C., during the 2016 presidential election to find out what, if anything, diplomats there knew about Paul Manafort’s work as a political adviser to a former Ukrainian president and political party that wanted their country to cut ties with the West and align Ukraine with Vladimir Putin’s Russia. Chalupa, who already knew about Manafort’s decades-long work on behalf of the pro-Russian Ukrainian political interests from her work as a human rights activist, had grave concerns that Manafort had recently been named to be Donald Trump’s campaign manager. 

It was routine for Whitaker and FACT to file such complaints with the FEC, the Internal Revenue Service, the Office of Government Ethics, and the Justice Department alleging wrongdoing by Democratic Party candidates and officeholders. Ordinarily, little came of these complaints. Indeed, the FEC has given no indication it will investigate Whitaker’s allegations in Chalupa’s case, and no evidence has emerged that either Chalupa or the DNC did anything wrong. Whitaker understood that his complaints would garner media coverage, amplifying his allegations of impropriety, even as the federal agencies with whom he filed his complaints almost invariably turned down his requests to investigate. News organizations that reported on the complaints rarely informed their readers later that no wrongdoing had been uncovered. A Republican political operative involved in some of FACT’s earliest efforts told New York Magazine: “The whole thing just became a chop shop of fake ethics complaints.”

What was distinctive—and odd—about FACT’s complaint in this filing against the DNC and Chalupa was that Whitaker had lifted numerous passages verbatim from a previous complaint filed with the FEC by various mainstream and liberal organizations seeking an investigation into whether the president’s son Donald Trump Jr. had violated federal campaign finance law by attending the infamous Trump Tower meeting of June 2016. At that meeting, Trump Jr., the president’s son-in-law Jared Kushner, and campaign manager Paul Manafort met with intermediaries of the Russian government who had promised to provide “dirt” on Hillary Clinton.

Even more strangely, Whitaker acknowledged his word-for-word borrowings. In a footnote in the complaint itself, Whitaker wrote that:

Much of the language in this complaint is taken verbatim from a recent complaint filed by Common Cause, the Campaign Legal Center, Democracy 21, Paul S. Ryan, and Catherine Hinckley Kelly involving comparable circumstances. Given their well-known commitment to even handed non-partisan enforcement of federal campaign law, we trust they would not object.

At the time of Whitaker’s complaint, President Trump and his aides were arguing that the Democrats had engaged in much the same conduct as Donald Trump Jr.—Alexandra Chalupa’s outreach to Ukrainian officials, they said, was no different. This argument does not stand up to scrutiny but the White House’s efforts were designed to persuade some—especially among the president’s conservative base—to believe that a moral and legal equivalence applied. And Whitaker was willing to try to provide grounds for the claim.

The complaint against Chalupa and the DNC was extraordinary for another reason: one former Trump administration official and one current one told me that Whitaker made the filing only after the White House encouraged him to do so. As a CNN legal commentator and the head of FACT, Whitaker was one of the most high-profile and outspoken critics of Special Counsel Robert Mueller’s investigation. That caught the attention of President Trump. As a result, Whitaker was interviewed by then-White House Counsel Don McGahn and a second lawyer for the president about joining Trump’s legal team. Although Whitaker did not get the job, he and White House officials discussed how Whitaker might serve the president’s interests in a private capacity. They suggested specific arguments Whitaker could make in defense of the president. They encouraged him to attack Mueller relentlessly, and they identified other possible targets for him. Among them was Alexandra Chalupa—and not long after that discussion with White House officials, Whitaker filed his complaint against her and the DNC with the FEC.

Trump had famously berated, humiliated, and threatened to fire his attorney general, Jeff Sessions, for recusing himself from overseeing the Russia investigation; Trump later also threatened to fire deputy attorney general Rod Rosenstein for appointing Mueller as special counsel and then overseeing his work while refusing to curtail or undermine the investigation. On November 7 last year, Trump made good on his threats by demanding Sessions’s resignation and naming Whitaker as acting attorney general the same day. At the highest levels of the Justice Department, Whitaker was viewed as the least qualified, least experienced person ever named to act as an attorney general in the modern political era, and many believed that the president had appointed Whitaker to that post only so that he might undermine the special counsel’s work. Given the fate of his predecessor, Whitaker could not easily have defied Trump and recused himself, but there is no reason to believe the compliant Whitaker even considered doing so.

Indeed, after Whitaker was appointed, he chose to disregard the advice of a senior Justice Department ethics officer that he recuse himself from overseeing the special counsel’s investigation, the legitimacy of which he’d questioned. In discussions with both the ethics officer and a group of Justice officials whom Whitaker selected to consider whether he should recuse himself, Whitaker never disclosed that while he headed FACT and worked as a CNN legal commentator, he had consulted with the White House about lines of attack against Mueller, according to a senior Justice Department official familiar with the matter. Neither did Whitaker inform them that he had filed his complaint against Chalupa and the DNC at the behest of the White House.

The senior official, fearing retaliation if he spoke publicly on the issue, told me that this “omission by Whitaker is a glaring one” and “a half-step away from being a lie by omission.” The official said that any Justice Department official, even the ones handpicked by Whitaker, would—in light of the Chalupa filing and his attacks on other political adversaries of the president at the behest of the White House—have advised that Whitaker needed to recuse himself from the special counsel’s investigation. This official believes that Whitaker should be investigated by the Justice Department’s inspector general to determine whether Whitaker withheld crucial information from the Justice Department officials who were providing him with legal advice about whether he needed to recuse himself. Because of the government shutdown, no Justice spokesperson was available to comment.

The disclosures in this story that Whitaker concealed vital pertinent information from Justice Department ethics advisers come as no fewer than ten Democratic senators on Friday asked the Justice Department’s inspector general to investigate Whitaker’s refusal to recuse. The IG is already considering another possible investigation of Whitaker. Senate Democratic Minority Leader Charles Schumer has formally asked the IG to investigate allegations that Whitaker might have been feeding information about the Mueller investigation to the president and his aides. In his request, Schumer cited a report I wrote for Vox, as well as subsequent stories on CNN and in The New York Times, disclosing that when Whitaker was serving as chief of staff to Sessions, he also counseled the White House on how the president might pressure Sessions and Rosenstein to conduct investigations of Trump’s political enemies, even though both officials, and then-White House Counsel Don McGahn, believed that doing so would be improper and potentially illegal. The House Judiciary Committee is also seeking Whitaker’s testimony on these matters.

But Whitaker’s value to Trump as a shield against the special counsel’s investigation is, in any case, time-limited. On December 7, the president named as his next attorney general William Barr, who had served in that post during the first Bush administration and who has also been a firm critic of Mueller’s investigation. Barr’s confirmation hearing begins on Tuesday.

Chalupa was a part-time consultant to the DNC, and served as a co-chair of the DNC’s Ethnic Council during the 2016 presidential election. Her mission with the DNC was to turn out Ukrainian-American voters as well as those of other foreign ethnic communities, something she had done for more than a decade. Alarmed that the man whom Donald Trump had named to be his campaign manager, Paul Manafort, had been an adviser to former Ukrainian President Viktor Yanukovych, who wanted Ukraine to cut ties with the European Union and make it more closely aligned with Russia, she set out to find out what she could. Part of that effort entailed speaking to officials of the Ukrainian embassy to see what they knew.

Chalupa’s concerns turned out to be well-founded. In August 2016, Manafort was forced to resign from the Trump campaign after disclosures that he had received millions of dollars in clandestine payments from Ukrainian political interests. Two years later, Manafort was convicted of eight federal felony counts of fraud related to his efforts to conceal those payments and evade paying taxes on them.

The comparison between what Donald Trump Jr. did in attending the Trump Tower meeting and what Alexandra Chalupa did has always been a facile one. The Russian Federation—an adversary of the United States—engaged in a covert intelligence effort to influence the outcome of the 2016 presidential election. Donald Trump Jr., Kushner, and Manafort agreed to a meeting with individuals they were told were associated with the Russian government to obtain “dirt” on Hillary Clinton. Trump Jr. was acting on behalf of his father and his presidential campaign. It is illegal for a political campaign to accept help from a foreign individual or government, and illegal not to disclose it; that is, in part, why the Trump Tower meeting has been a focus of the special counsel’s investigation.

In Chalupa’s case, however, she conducted her research on Manafort on her own account; her consultancy for the DNC involved outreach, not opposition research. Although Chalupa mentioned what she was doing to colleagues at the DNC, they took no interest in her efforts, and in July 2016 she quit working for the DNC to focus more on her human rights advocacy and also to investigate Manafort. As I reported for Vox, she even organized a protest in Manafort’s hometown of New Britain, Connecticut, in which protesters held up signs saying “Putin, hands off the US election.” The Democratic National Committee and the Clinton campaign have said that they had no involvement in her efforts, and no evidence has surfaced to contradict that claim. The FEC has given no indication that it intends to investigate Whitaker’s complaint.

In filing complaints against Chalupa and others, FACT represented itself as nonpartisan. Despite its commitment to demanding “openness and transparency” in others, FACT has refused to publicly identify its donors. In tax filings, FACT has identified its only source of income as an entity called DonorsTrust, a “pass-through” that allows wealthy conservative donors to donate but remain anonymous. After he became FACT’s executive director in 2014, Whitaker would be paid a total of $1.2 million by the organization’s donors. During most of his tenure, he was FACT’s sole full-time employee. In the first nine months of 2017, before he was named chief of staff to the attorney general, Whitaker was paid $502,000 in salary.

FACT describes itself as a nonpartisan nonprofit “group of citizens which is committed to exposing unethical behavior, changing the culture of politics, and restoring faith in our public officials.” But its targets have been almost exclusively Democratic, and during the 2016 presidential campaign, the most frequent target of FACT’s efforts was Hillary Rodham Clinton. Its claims of nonpartisanship were too often credulously accepted by news organizations reporting about FACT’s allegations or publishing columns Whitaker wrote. In July 2016, after then FBI Director James Comey announced that no criminal charges would be brought against Hillary Clinton for her use of a private email server, Whitaker wrote an op-ed for USA Today entitled “I would indict Hillary Clinton.” 

In an effort to deflect attention from disclosures about the June 2016 Trump Tower meeting, the president himself, working with his surrogates on Capitol Hill, in the conservative media, and at advocacy groups like FACT, cited the Ukrainian matter in an attempt to illustrate that what his son and advisers had done was commonplace and carried out by both sides in the 2016 election. The White House also hoped that Congress, the FEC, or even the Justice Department and FBI might investigate the DNC and Chalupa.

With his frequent appearances on CNN in which he assailed the special counsel, Whitaker was pursuing a personal agenda: in June 2017, in a CNN green room, Whitaker told John Q. Barrett, a professor at St. John’s Law School, “that he was flying out from Iowa to NYC to be on CNN regularly because he was hoping to be noticed as a Trump defender, and through that to get a Trump judicial appointment back in Iowa.” In August 2017, Whitaker said on a radio show that Mueller’s appointment was “ridiculous” and “smells a little fishy.” Whitaker vowed that if he felt the special counsel’s investigation had become “a fishing expedition,” he would be “one of the ones jumping up and down” to rein him in. On another occasion, Whitaker mused on air about how senior Justice Department officials might impede the Mueller probe by simply denying Mueller necessary funding. “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,” Whitaker said. A month later, Whitaker was invited to the White House to discuss joining the president’s legal team.

During Whitaker’s discussions with White House officials about a job, the conversation more than once turned to potential avenues of attack against Mueller’s investigation. The New York Times had recently disclosed details of the Trump Tower meeting, and Trump had led the effort to undercut the implications. Trump himself favored using the Ukraine issue to argue that the president’s son did no worse than the Democrats had done.

On July 10, 2017, White House Press Secretary Sarah Huckabee Sanders encouraged reporters to investigate how “the Democrat National Committee coordinated opposition research directly with the Ukrainian Embassy… So if you’re looking for an example of a campaign coordinating with a foreign country or a foreign source, look no further than the DNC.” Sebastian Gorka, then a White House deputy assistant, appeared on CNN to reinforce the message: “Let’s compare [the Trump Tower meeting] to the DNC sending its people to the Ukrainian embassy to coordinate oppo attacks against our candidate,” he said. “If you want to see collusion, it’s in the DNC. I mean, it is up to their necks.” On July 12, Sean Hannity devoted the opening of his Fox News program to defending the Trump Tower meeting—in part by arguing that the Ukrainian matter was equivalent. On July 24, Senator Chuck Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee, wrote to the Justice Department to say he was conducting an investigation. And on July 25, Trump tweeted: “Ukrainian efforts to sabotage Trump campaign—‘quietly working to boost Clinton.’ So where is the investigation A.G. @seanhannity”

According to people familiar with Whitaker’s discussion in the White House, Whitaker said he would do what he could. After that initial meeting and a series of phone calls with White House Counsel Don McGahn and others, McGahn informed Whitaker that they thought it best for Whitaker and for them that they not hire him immediately. Whitaker was told that, for the time being, he was more valuable “on the outside,” continuing as a CNN legal commentator and in his position at FACT. On August 9, Whitaker filed FACT’s complaint about the Democratic National Committee and Chalupa.

But just before he did so, Whitaker again met with McGahn and at least one other senior White House official to talk further about the possibility of his joining the president’s legal team to defend Trump from the special counsel’s investigation. Even Whitaker could not have guessed how well his loyalty would be rewarded. He would win not a judicial nomination from the Trump administration but the post of chief of staff to Attorney General Jeff Sessions—and then succeed him by becoming the acting attorney general.

There is both irony and unintended consequence in Whitaker’s complaint against the DNC and Chalupa. Whitaker, of course, was trying to score rhetorical points by copying portions of the complaint by Common Cause, the Campaign Legal Center, and other advocacy groups filed against Donald Trump Jr. To his mind, Whitaker was reinforcing the argument about equivalence, but by adopting portions of their complaint as his own, Whitaker was also unwittingly embracing their position that the Trump team may have violated campaign finance law. Brendan Fischer, the federal reform director for the Campaign Legal Center, who helped write its complaint, pointed out to me that Whitaker’s complaint adopted the position that a ban on foreign campaign contribution includes “anything of value, including information and leads, the fruits of paid research, or similar investigatory activity, to a political committee.” Whitaker also embraced the position that the “ban applies to both the solicitation and receipt of such a contribution.” Fischer added:

Don Jr., of course, is under investigation for soliciting a prohibited in-kind contribution from Russian nationals in the form of opposition research. Given Whitaker’s stated position on the law, there is no credible way that Whitaker could oppose prosecuting Don Jr. for soliciting or receiving opposition research, if the evidence supported such a prosecution.

Aside from his vulnerability in apparently breaching government ethics rules to gain his appointment, the acting attorney general would thus also be hard-pressed to prevent Donald Trump Jr.’s being subpoenaed by the special counsel about the Trump Tower meeting. But as the new information in this story reveals, had Whitaker—the nation’s highest-ranking law enforcement officer—told the truth in the first place, he might never have been overseeing the special counsel’s investigation at all.