President Trump’s appointment of Matthew Whitaker as acting Attorney General in the aftermath of his long-anticipated firing of the recusal-prone Jeff Sessions once the midterm elections were over has raised objections for many reasons.
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Legal objections have been raised over the fact that Whitaker has never been confirmed to any position by the U.S. Senate as many argue is constitutionally required. There is also the fact that while Trump appointed Whitaker under the Federal Vacancies Reform Act of 1998 that regulates how government positions are filled when a there is an opening, another statute exists that details exactly how any vacancy specifically atop the Justice Department should be filled, as this excerpt from the Lawfare blog shows:
“'[i]n case of a vacancy in the office of Attorney General, … , the Deputy Attorney General may exercise all the duties of that office.’ The statute further provides that if both the attorney general and the deputy attorney general are unavailable or unable to serve, the associate attorney general ‘shall act’ as attorney general. The statute also authorizes the attorney general to ‘designate’ the solicitor general and the various assistant attorney generals in ‘further order of succession.’ Under the current attorney general order, the solicitor general is next in the line of succession.”
While the debate over the constitutionality of the appointment is ongoing, another issue related to Whitaker’s dubious implantation into the post has arisen today that further clouds the situation, the lack of financial disclosure documents from Whitaker that are required to be publicly disclosed within 30 days after being filed.
American Oversight, a non-partisan, nonprofit ethics watchdog sent a letter yesterday to the Office of Government Ethics insisting that the Department of Justice has failed to follow the requirements of Ethics in Government Act by providing the new Acting Attorney General’s financial disclosures as mandated by the law.
— American Oversight (@weareoversight) November 16, 2018
Austin Evers, the Executive Director of American Oversight, points out in the letter that even after taking advantage of every available extension to the deadlines provided in the bill, Whitaker’s disclosure should have been made public no more than 120 days after he became Jeff Sessions’ Chief of Staff on October 4, 2107. His second financial disclosure as an incumbent in that job was due no later than August 13, 2018.
Yet the Department of Justice “has not yet permitted inspection or furnished a copy of these public financial disclosure reports, notwithstanding the overwhelming public interest in understanding the potential conflicts of interest of the new Acting Attorney General,” according to Ever’s letter.
The failure of the Department of Justice to follow the law concerning Whitaker’s financial disclosures is a serious dereliction of its duties as a government agency and a bad example for the department in charge of enforcing laws to set. Evers calls on the OGE to investigate the status of Whitaker’s financial disclosure requirements and to ensure that the DOJ follows the transparency laws that require that the public is allowed to see them.
“Transparency regarding potential conflicts of interest is a core tenet of the federal government ethics program. Especially given the tremendous responsibilities he has recently assumed as acting head of the Department of Justice, the absence of any public disclosure regarding Mr. Whitaker’s potential conflicts of interest is quite troubling. The Department’s apparent unwillingness to make his public financial disclosure reports publicly available or even provide an estimate for disclosure now, ten days after his appointment as Acting Attorney General, also raises the disturbing possibility that Mr. Whitaker has potentially failed to comply with his legal obligations under OGE regulations to file timely public disclosures,” Evers writes.
“We strongly urge OGE to undertake an investigation regarding the status of Mr. Whitaker’s public disclosure reports and to take steps to promote appropriate transparency and public awareness regarding his potential conflicts of interest,” he concludes.
Walter Shaub, the former Director of the Office of Government Ethics during the Obama administration, saw Ever’s letter and explained its significance.
Bear in mind that DOJ is legally required to release these reports no later than 30 days after their filing — whether or not DOJ has finished reviewing them. This means either Whitaker failed to file (illegal) or DOJ is determined to hide them from you (illegal). pic.twitter.com/EmzV9JKvQV
— Walter Shaub (@waltshaub) November 17, 2018
With Whitaker’s appointment widely viewed as an illegal move made by President Trump as an attempt to halt or at least impede the investigation into his activities by Special Counsel Robert Mueller, the additional questions regarding his financial disclosures can only raise suspicions about the length of his tenure as Acting Attorney General even higher.
The Department of Justice must respect the law and release Whitaker’s financial info as soon as possible or someone else must take his place immediately. Preferably Rod Rosenstein as the DOJ’s own succession regulations actually call for.
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Original reporting by Austin Evers at American Oversight.