The Russia watchWhitaker’s appointment & Muller investigation; Russia’s meta-trolling campaign; Russia dismayed as Dems take House, and more
· Top legal ethics expert (Stephen Gillers) writes: Whitaker should be recused
· A thousand cuts: How the acting attorney general could kill Russia investigations without firing Mueller—and only “norms” could stop him
· Matthew Whitaker’s appointment as acting attorney general: Three lingering questions
· We aren’t alarmed enough about Jeff Sessions’s firing
· House Democrats are already trying to protect the Mueller investigation
· Russian troll farm Internet Research Agency has new meta-trolling propaganda campaign
· Facebook says Russian company might have been behind pages purged earlier than midterms
· A Russian troll farm set an elaborate social media trap for the midterms — and no one bit
· Russia in dismay and despair as Democrats take the House in midterm elections
Top legal ethics expert (Stephen Gillers) writes: Whitaker should be recused (Stephen Gillers, Ryan Goodman, Just Security)
Ryan Goodman asked a foremost expert on legal ethics and professional responsibility, Stephen Gillers, to share with Just Security his views on Matthew Whitaker’s appointment as Acting Attorney General and, in particular, whether Whitaker should be able to oversee the Mueller investigation. Professor Gillers’ response:
The media commentary surrounding the decision to put Matthew Whitaker in charge of the Mueller investigation is a bit muddled, as often happens when legal questions are suddenly thrust into the headlines. A critical distinction is needed between ethics and recusal.
Whitaker has repeatedly expressed hostility to any expansion of Mueller’s jurisdiction beyond the possibility of collusion between the Trump campaign and Russia. That includes expansion to investigate Trump family finances. A fair reading of his comments suggests that he also has doubts about the decision to appoint a special counsel at all.
This history raises two questions. First, can Whitaker oversee the Mueller probe as a matter of legal ethics? The answer to this question is easy. Yes. Or to put it another way, Whitaker could not be disciplined as a lawyer if he were to decide to substitute himself for Rod Rosenstein as the person to whom Mueller reports. Of course, this assumes that any decisions Whitaker makes as Mueller’s supervisor were within the broad but not unlimited scope of traditional prosecutorial discretion. He would obstruct justice if he quashed or crippled the Mueller investigation for the purpose of protecting Trump or for political advantage.
The second question is whether Whitaker’s stridently harsh comments about the special counsel’s work warrant his recusal from overseeing the Mueller probe. The question of recusal is not the same as the question of legal ethics. Nor should it be. The Department of Justice must be concerned not only with the ethical exercise of prosecutorial discretion in fact, but also with the public’s confidence in the exercise of that discretion. So conduct that would not be unethical may nonetheless require recusal. And that is true here.
