Protesters call for protection of Mueller investigation, as Trump appoints a former Hawkeye with potential conflicts of interest as acting attorney general

Sara Miller speaks on the Pentacrest during a demonstration protesting the removal of Attorney General Jeff Sessions and appointment of Matt Whitaker. Thursday, Nov 8, 2018. — Zak Neumann/Little Village

The street lights switched on just before Sara Miller started addressing the protesters gathered on the UI Pentacrest Thursday evening. The protest was one of hundreds across the country organized by to express support for Robert Mueller, the special counsel investigating issues related to collusion between Donald Trump’s 2016 presidential campaign and Russian agents, as well as obstruction of justice by the Trump administration.

The protests were meant to be a “rapid response” to the forced resignation of Attorney General Jeff Sessions, and the appointment by Trump of Matt Whitaker as acting attorney general on Wednesday.

Trump had repeatedly and very publicly berated Sessions, who worked on the 2016 campaign and was the first member of the U.S. Senate to endorse Trump, because the attorney general followed Justice Department regulations and recused himself from supervising Mueller’s investigation. Whitaker — a University of Iowa Law School graduate, who played tight end for the Hawkeyes as a UI undergraduate — has been very public about his support for Trump and repeatedly denounced Mueller’s investigation before joining the Trump administration in late 2017.

“The fact that all of you came out tonight on this cold November day, when we’ve got snow heading into the area, serves as a reminder of just how completely important it is that this administration completely understands that the Mueller investigation and the office of special counsel must be protected at all costs,” Miller said, standing on the steps of the Old Capitol Building.

Because Sessions was required to recuse himself, Mueller has been supervised by Deputy AG Rod Rosenstein. On Wednesday, the Justice Department announced that Mueller would now answer directly to Whitaker.

“We’re demanding that Matthew G. Whitaker recuse himself from the Mueller investigation,” Miller said to applause, slightly muffled by the gloves and mittens people were wearing in the near-freezing weather. “It’s absolutely appalling that one day after the Democrats take back the House [of Representatives], that the president decided to … fire Sessions and remove Rosenstein.”

The crowd of protesters started small, but eventually grew to almost 100 as the 45-minute rally continued. There were four counter-protesters near the back of the crowd. One was wearing a “Don’t Tread on Me” T-shirt, and had a small, handmade sign with “Jobs Not Mobs” on one side, and “What Are You Protesting Today?”

“[Whitaker]’s a former Hawkeye,” one of the counter-protesters said to another. “How do they know he’s worse?”

Demostrators protesting the removal of Attorney General Jeff Sessions and appointment of Matt Whitaker on the Pentacrest. Thursday, Nov 8, 2018. — Zak Neumann/Little Village

Whitaker has been playing up his former glory days as a college athlete while pursuing positions of power. In 2011, Whitaker submitted an application when an opening occurred on the Iowa Supreme Court. As Ryan Foley of the Associated Press noted on Twitter, when Whitaker appeared before the State Judicial Nominating Commission, he wore his ring from the 1991 Rose Bowl (Iowa lost to the Washington Huskies, 46-34) and also brought along Hawkeye basketball great, Bobby Hansen.

The panel did not recommend Whitaker for the open seat.

Speaking to reporters on Friday morning, Trump said, “I don’t know Matt Whitaker.” The president added, “He was always extremely highly thought of, and he still is. But I didn’t know Matt Whitaker. He worked for Attorney General Sessions.” CNN described Trump’s comments as part of an effort “to distance himself from the Justice Department official he just named as acting attorney general in the face of mounting criticism about the legality and propriety of his appointment.”

The most pointed challenge to the legality of Whitaker came in a New York Times op-ed, written by two prominent Washington D.C. attorneys, Neal Katyal, a Democrat who served in the Obama administration, and George Conway, a Republican who is married to White House Counselor Kellyanne Conway.

“[Whitaker’s appointment] defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power,” Katyal and Conway wrote. The attorney general, like other members of the president’s cabinet, is a principal officer of the federal government. “What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss,” they explain. According to the Appointments Clause of the Constitution (Article II, Section 2, Clause 2), a “principal officer must be confirmed by the Senate,” Katyal and Conway wrote.

Any currently serving deputy or assistant attorney general would be able to fill the role of acting attorney general, but Whitaker’s appointment violates the Constitution since he was Sessions’ chief of staff, a position that doesn’t require Senate confirmation. Because he lacks Senate confirmation, Katyal and Conway warn that any official action taken by Whitaker will be declared null and void if challenged in federal court.

“Constitutionally, Matthew Whitaker is a nobody,” they wrote.

Iowa’s Chuck Grassley, the chair of the Senate Judiciary Committee who loudly advertises himself as a government watchdog, apparently has no qualms about the constitutionality of Whitaker’s appointment.

“A fellow Iowan, who I’ve known for many years, Matt will work hard and make us proud,” Grassley said in a statement on Wednesday. “The Justice Department is in good hands during this time of transition.”

Trump has gone even further than Grassley, according to Rep. Steve King. David Martosko, the U.S. politics editor for the conservative UK newspaper the Daily Mail, tweeted that King told him Trump asked the western Iowa congressman last month “to call Matt, and tell him that he loves him.”

If King is telling the truth, that was an early sign Whitaker’s efforts to catch Trump’s eye had worked. Prior to being hired as Sessions’ chief of staff on Sept. 22, 2017, Whitaker had made frequent cable news and talk radio appearances praising and defending Trump, and criticizing the Mueller investigation. He even wrote an op-ed for CNN explaining how to cripple the investigation, without having to fire Mueller.

As the Daily Beast reported, Whitaker talked to a fellow cable news guest about his strategy of using TV appearances to appeal to dedicated cable news consumer Donald Trump.

St. John’s University law professor John Q. Barrett said he met Whitaker several times in the “green room” at CNN when both were appearing to discuss Mueller’s investigation.

He said Whitaker told him he was shuttling back and forth to New York to raise his profile in the hopes the White House would notice him.

“I said, ‘What are you interested in?’ And he said, ‘A judgeship,’” Barrett said, adding that he got the impression Whitaker wanted an appointment in Iowa.

A few months later, Whitaker became chief of staff to Sessions. “I guess something led to something,” Barrett said.

At the time, Whitaker was the head of the Foundation for Accountability and Civic Trust, a nonprofit that specializes in filing ethics complaints against Democratic politicians. The little known group refuses to disclose its funders.

Demostrators protesting the removal of Attorney General Jeff Sessions and appointment of Matt Whitaker on the Pentacrest. Thursday, Nov 8, 2018. — Zak Neumann/Little Village

Whitaker has held a federal government position: he was appointed the U.S. Attorney for the Southern District of Iowa by President George W. Bush in 2004. Whitaker’s most notable moment in that office occurred in 2007, when he indicted Matt McCoy for fraud. McCoy was a Democratic leader in the Iowa Senate and the first openly gay member, and the prosecution was widely regarded at the time as politically motivated.

As McCoy explained to NPR on Wednesday:

After a nine-day trial, a jury of my peers in roughly 20 minutes came up with a unanimous not guilty verdict, and I was acquitted, fully acquitted. And so I know Matt Whitaker will misuse his office because I’ve seen it. And I know that he will misuse his power because he’s done it.

Roxanne Conlin, a Democrat who served as U.S. Attorney in Des Moines before Whitaker, told NPR she was “horrified” when she heard of Whitaker’s appointment as acting attorney general. “I have every single confidence that politics will play a role in his service as acting attorney general,” she said.

Whitaker is well-connected, if not particularly successful, in Iowa Republican politics. In 2014, he ran for U.S. Senate, but finished fourth out of five candidate in the Republican primary, with just over 7 percent of the vote. In interviews Whitaker gave during that campaign, he emphasized the importance of taking a “biblical” and “Christian” view of the law, and cited Marbury v. Madison as a U.S. Supreme Court decision that should be overturned. The 1803 decision established the principle of judicial review and that the courts overturn an unconstitutional presidential order.

After losing the primary, Whitaker served as campaign manager for Republican Sam Clovis’ unsuccessful bid for Iowa Treasurer. In 2016, Clovis joined the Trump campaign as a senior adviser. According to court documents filed in the Mueller probe, Clovis played an important role in campaign meetings where contacts with Russians were discussed. Clovis has testified before Mueller’s grand jury.

Critics has suggested Whitaker’s connection to Clovis by itself is enough to require him to recuse himself from supervising Mueller. The winner of the 2014 Iowa Senate race, Republican Joni Ernst, did not mention any such concerns in her statement on Whitaker’s appointment.

Fellow Iowan Matt Whitaker is a man of integrity and values. As Acting Attorney General, Matt Whitaker is a steady hand that will provide good leadership and judgment, and will ensure that the United States Department of Justice upholds the highest standards of the rule of law.

As the protest on the Pentacrest drew to a close, Miller told the remaining members of the crowd it was important that they keep calling Grassley and Ernst to push them to defend the Mueller investigation. She also remind everyone that it was important to take time for self care.

“Take care of yourselves, take a break if you need to,” she said. “And then come back re-energized and keep working.”

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