Matthew Whitaker (attorney)

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Matthew Whitaker
Matthew G. Whitaker official photo.jpg
Acting United States Attorney General
Assumed office
November 7, 2018
PresidentDonald Trump
DeputyRod Rosenstein
Preceded byJeff Sessions
Chief of Staff to the United States Attorney General
In office
September 22, 2017 – November 7, 2018
Attorney GeneralJeff Sessions
Preceded byJody Hunt
Succeeded byGary Barnett
United States Attorney for the Southern District of Iowa
In office
June 15, 2004 – November 25, 2009
PresidentGeorge W. Bush
Barack Obama
Preceded byStephen Patrick O'Meara
Succeeded byNicholas A. Klinefeldt
Personal details
BornMatthew George Whitaker
(1969-10-29) October 29, 1969 (age 49)
Des Moines, Iowa, U.S.
Political partyRepublican
EducationUniversity of Iowa (BA, JD, MBA)

Matthew George Whitaker (born October 29, 1969) is an American lawyer and politician currently serving as Acting United States Attorney General. He was appointed by President Donald Trump on November 7, 2018 after Jeff Sessions resigned at Trump's request.[1] Whitaker served as a U.S. Attorney during the Bush Administration and served as Chief of Staff to Sessions from September 2017 to November 2018.[2]

In 2002, Whitaker was the candidate of the Republican Party for Treasurer of Iowa. From 2004 to 2009 he served as the United States Attorney for the Southern District of Iowa. Whitaker ran in the 2014 Iowa Republican primary for the United States Senate. He subsequently wrote opinion pieces and appeared on talk-radio shows and cable news as director of a conservative nonprofit organization.

Whitaker's appointment as Acting Attorney General prompted a number of legal scholars, commentators, and politicians to question its legality and constitutionality, noting that his selection circumvented Senate confirmation.[3] Some also called for Whitaker to recuse himself from overseeing the Special Counsel investigation led by Robert Mueller because of his public criticisms of the probe.[4]

After Whitaker took office, reports surfaced of his prior work on the board of World Patent Marketing, which had been fined $26 million and shut down by federal regulators in 2017 for deceiving consumers.[5][6]

Early life and education[edit]

Whitaker was born in Des Moines, Iowa, on October 29, 1969. His mother was a schoolteacher and his father a car salesman. Whitaker graduated from Ankeny High School and subsequently attended the University of Iowa, from which he graduated with a bachelor's degree in communications, a Master of Business Administration, and a law degree in 1995.[7]

During his undergraduate years at Iowa, Whitaker played tight end for the University of Iowa Hawkeyes football team, appearing in Iowa's Rose Bowl game in 1991.[8] His football career was described by contemporaries as beneficial to his political career, with law school classmate Charles Larson saying “He’d be exactly the type of candidate we’d love to have run. He had a great profile as an attorney and former Hawkeye. There’s always appeal there.”[9]

Career[edit]

After graduating from law school, Whitaker worked for a number of regional law firms including Briggs & Morgan (Minneapolis) and Finley Alt Smith (Des Moines). He was also corporate counsel for a national grocery company, SuperValu, and small businessman owning interests in a trailer manufacturing company, a daycare, and a concrete supply company.[10] Whitaker ran as a Republican for Treasurer of Iowa in 2002, losing to incumbent Democrat Michael Fitzgerald by 55% to 43%.[11]

Whitaker's U.S. Attorney portrait

United States Attorney[edit]

On June 15, 2004, Whitaker was appointed U.S. Attorney for the Southern District of Iowa by President George W. Bush. The appointment was at the recommendation of Iowa Senator Chuck Grassley, in spite of Whitaker's minimal relevant legal experience.[12]

From 2005 to 2007, Whitaker was responsible for the unsuccessful investigation and prosecution of Iowa State Sen. Matt McCoy, a gay, liberal Democrat, on charges of attempting to extort $2000[13] was based on the word of a man former associates depicted as a drug user, a deadbeat and an abuser of women; a man so shady even his Alcoholics Anonymous sponsors called him "a pathological liar". A columnist for the Des Moines Register said that the case "... was based on the word of a man former associates depicted as a drug user, a deadbeat and an abuser of women; a man so shady even his Alcoholics Anonymous sponsors called him 'a pathological liar.'"[14][15] The jury took less than two hours to return a verdict of "not guilty".[16][17]

Whitaker resigned in November 2009 following the Senate confirmation of his replacement, Nicholas A. Klinefeldt, who was nominated by President Barack Obama.[8][18]

From 2009 to 2017, Whitaker was a managing partner of the small general practice law firm Whitaker Hagenow & Gustoff LLP (now Hagenow & Gustoff LLP) in Des Moines, Iowa.[19]

Political activities[edit]

During the 2012 presidential campaign, Whitaker was Minnesota governor Tim Pawlenty's co-chairman in Iowa, and then state co-chairman for Texas governor Rick Perry.[20]

Whitaker was a candidate for the Republican nomination in the 2014 United States Senate election in Iowa, a seat being vacated by Democrat Tom Harkin. He came in fourth in the Republican primary in June, with 11,909 votes (7.54%). The nomination was won by Joni Ernst, who went on to win the general election.[21]

After losing the Republican primary, Whitaker chaired the campaign of Sam Clovis, another unsuccessful primary candidate who had been selected, later in June, to run for Iowa State Treasurer.[22] Clovis lost in the November 2014 general election.[23][24][25]

World Patent Marketing[edit]

In 2014, Whitaker joined the board of World Patent Marketing, which offered business and legal services to inventors.[26] In March 2017, the Federal Trade Commission charged the company with fraudulently deceiving consumers and suppressing complaints through intimidation and the use of gag clauses.[27][28][29] In May 2018, a federal court ordered the company to close and pay a $26 million fine.[30] Many customers suffered significant losses as a result of working with the company[5][31] and when they tried to recoup their fees, the company used Whitaker's background as a U.S. Attorney to threaten them. In a 2015 email mentioning his background as a former federal prosecutor, Whitaker told a customer that filing a complaint with the Better Business Bureau or "smearing" the company online could result in "serious civil and criminal consequences." [32][33] The company contributed to Whitaker's 2014 US Senate campaign.[34] Whitaker performed almost $17,000 in compensable work for the company.[35] In 2017 FTC investigators examined whether Whitaker had played any role in making threats of legal action to silence the company's critics. Whitaker rebuffed an FTC subpoena for records in October 2017, shortly after he had joined the Justice Department.

White House and senior Justice Department officials were reportedly surprised to learn of Whitaker's connection to the company.[36] Through a DOJ spokesperson, Whitaker has denied awareness of the company's fraud.[5] The court receiver in the case said he has “no reason to believe that [Whitaker] knew of any of the wrongdoing.”[36] As of November 2018, the FBI is still investigating World Patent Marketing.[37]

Foundation for Accountability and Civic Trust[edit]

From October 2014 to September 2017, Whitaker was the executive director of the Foundation for Accountability and Civic Trust (FACT),[38] and the organization's only full-time employee in 2015 and 2016.[39] FACT, founded in late 2014, is a conservative nonprofit organization specializing in legal and ethical issues related to politics.[40][41] The Washington Post reported in February 2015 that "The group is backed by $1 million in seed money from donors who support conservative legal causes," and that Whitaker had declined to identify the donors.[42] According to the organization's first tax return, its funding — $600,000 in 2014 - came from a conservative donor-advised fund called DonorsTrust, a pass-through vehicle that allows donors to remain anonymous.[43]

While Whitaker was the head of FACT, the organization had a special focus on the Hillary Clinton e-mail controversy and perceived favoritism in the business dealings of Clinton.[44] Despite claiming to be nonpartisan, the organization called for ethics investigations into or filed complaints about forty-six different Democratic politicians, officials, and organizations, compared to only a few Republicans.[45] During this time, Whitaker wrote opinion pieces that appeared in USA Today and the Washington Examiner, and appeared regularly on conservative talk-radio shows and cable news.[46]

CNN contributor[edit]

Whitaker aspired to become a judge in Iowa, and hoped his media appearances would catch the eye of the Trump administration.[20] For four months, from June to September 2017, he was a CNN contributor.[47] One month prior to joining the Justice Department, Whitaker wrote an opinion column for CNN titled "Mueller's Investigation of Trump is Going Too Far."[48] He stated that Mueller's investigation was a "lynch mob", that it should be limited, and that it should not probe into Trump's finances.[49][50]

Legal and policy views[edit]

Constitutional issues[edit]

Whitaker stated in a question-and-answer session during his 2014 Iowa Senatorial campaign that "the courts are supposed to be the inferior branch."[51][52] Whitaker was critical of the United States Supreme Court's decision in Marbury v. Madison (1803), the decision that allows judicial review of the constitutionality of the acts of the other branches of government, and several other Supreme Court holdings. Harvard Law professor Laurence Tribe commented on Whitaker's views that "the overall picture he presents would have virtually no scholarly support," and that they would be "'destabilizing' to society if he used the power of the attorney general to advance them."[51]

Whitaker also stated during his 2014 Senate bid that he would not support "secular" judges and that judges should "have a biblical view of justice." Asked if he meant Levitical or New Testament justice, he replied "I’m a New Testament."[53] Whitaker's answer has been interpreted by various individuals and groups, including the Anti-Defamation League, to imply that he would disqualify non-Christian judges, and were condemned as unconstitutional. An ADL spokesperson said, “The notion that non-Christian judges are disqualified from service is patently wrong, and completely inconsistent with the U.S. Constitution, which explicitly bars any religious test for public office."[54]

Whitaker stated in 2013 he supports the right of states to nullify federal laws.[55] Stephen Vladeck, a University of Texas law professor, stated that Whitaker's views on nullification are "irreconcilable not only with the structure of the Constitution, but with its text, especially the text of the Supremacy Clause," and added that "For someone who holds those views to be the nation's chief law enforcement officer, even temporarily, is more than a little terrifying."[55]

Criticisms of 2017 Special Counsel investigation[edit]

During the months prior to joining the Justice Department as Jeff Sessions' chief of staff in September 2017, Whitaker made several statements critical of the Mueller investigation, of which he assumed oversight responsibility upon being appointed Acting Attorney General in November 2018. By July 2017, the Trump White House was interviewing Whitaker to join the Trump legal team.[56] During a six-month span in 2017, according to The Washington Post, Whitaker insisted that there was no obstruction of justice or collusion and criticized the initial appointment of the special counsel. He also called the probe "political"[57] and "the left is trying to sow this theory that essentially Russians interfered with the U.S. election, which has been proven false.”[58] He also published an op-ed titled, "Mueller's Investigation of Trump Is Going Too Far"[59] in which he expressed skepticism about the investigation generally and called the appointment of Mueller "ridiculous."[60][61] Through social media, he also promoted an article that referred to the investigation as a "lynch mob."[59][62]

Relationship with Donald Trump[edit]

In early September 2018, Axios reported that Whitaker was on the short list of President Trump's White House staff as the replacement for Don McGahn as the White House Counsel.[63][64]

In September 2018, The New York Times reported that White House Chief of Staff John Kelly referred to Whitaker as "the West Wing’s 'eyes and ears' in the Justice Department," which the president considered himself at war with.[65]

Trump had spoken with Whitaker in September 2018 about potentially assuming Sessions's role as Attorney General, although it was not clear whether Whitaker would take over on an interim basis or be nominated in a more permanent capacity.[66] At that time, The New York Times described Whitaker as a Trump loyalist who had frequently visited the Oval Office and as having "an easy chemistry" with Trump.[65] Whitaker was referenced by White House staff after a New York Times article disclosed in September that Rod Rosenstein had discussed secretly taping his conversations with the president and talked about using the 25th Amendment to remove Trump from office.[67]

Trump repeatedly stated on November 9, "I don't know Matt Whitaker," contradicting remarks a month prior on Fox & Friends when he said, "I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker."[68][69][70] Vox reported that the president met with Whitaker at least 10 times and frequently talked to him on the phone, and that according to a former and a current administration official, Whitaker advised Trump in private on how to potentially pressure the Justice Department into investigating Trump's adversaries.[71]

Other policy Issues[edit]

Whitaker has ties to the evangelical Christian community, his website previously stated that he is a "Christian who regularly attends church with his family, Matt has built a life on hard work and free enterprise" and he stated in 2014 that “life begins at conception.”[72][73][74] In 2014 he advocated for reducing the influence of the government saying, "I know that the government forcing people to violate their faith must never be tolerated. In the Senate, I will be a steadfast protector of every American's religious rights."[75]

He has expressed a desire to get rid of chain immigration and to stop a pathway for undocumented immigrants to citizenship.[76]

In 2014, Whitaker argued that expressing homophobic comments is legitmate expression of religious beliefs that should be protected speech, saying “I just really think this case is a prime example of where religious freedom in our country is under assault and we need to send a strong message.”[77]

In 2014, Whitaker supporter repealing and defunding the Affordable Care Act in line with the previous Attorney General and stop social security.[78][79][80]

In 2016, Whitaker defended ExxonMobile as the executive director of FACT when the Attorneys General United for Clean Power Coalition started their investigation into the firm for not disclosing climate change risks.[81] Whitaker called the investigation "both unconstitutional and unethical".[81] The investigation has matured leading to four counts of fraud being filed against ExxonMobil.[82][83][84]

Department of Justice[edit]

The New York Times reported on November 9, 2018, that Trump had seen Whitaker's supportive commentaries on CNN in the summer of 2017, and in July White House counsel Don McGahn interviewed Whitaker to join Trump's legal team as an "attack dog" against Robert Mueller, who was heading the Special Counsel investigation. The Times reported Trump associates believe Whitaker was later hired to limit the fallout of the investigation, including by reining in any Mueller report and preventing Trump from being subpoenaed.[85]

Chief of Staff[edit]

CNN reported that Leonard Leo of the Federalist Society recommended Whitaker to McGahn as chief of staff for Sessions, who, it is reported, did not realize for a year that Whitaker wanted to replace him.[86] On September 22, 2017, a Justice Department official announced that Sessions had appointed Whitaker to replace Jody Hunt as his chief of staff.[87][88] George Terwilliger, a former U.S. attorney and deputy attorney general, said in his role as chief of staff, Whitaker would have dealt daily with making "substantive choices about what is important to bring to the AG...."[89]

Murray Waas of Vox reported on November 9, 2018, that in 2017 Whitaker provided private advice to Trump on how the White House might pressure the Justice Department to investigate the president's adversaries, including appointing a special counsel to investigate the FBI and Hillary Clinton.[90]

Acting Attorney General[edit]

With the resignation of Sessions on November 7, 2018, Whitaker was appointed to serve as Acting Attorney General under the Federal Vacancies Reform Act of 1998[7][91][92], though the legality of the appointment is controversial.[3] The Acting Attorney General directly supervises Robert Mueller's Special Counsel investigation, which had previously been supervised by Deputy Attorney General Rod Rosenstein in his role as Acting Attorney General, due to the recusal of Attorney General Jeff Sessions.

Reaction to appointment[edit]

Soon after Whitaker's appointment as Acting Attorney General, a "broad and growing array" of legal experts expressed concern.[93] New York University law professor Ryan Goodman and Walter Shaub, former director of the U.S. Office of Government Ethics, argued for Whitaker to recuse himself from supervising the investigation, citing potential conflicts of interest such as his previous criticism of the Special Counsel investigation and his ties to Sam Clovis who is a witness in the investigation.[94][95][96] NYU law professor Stephen Gillers said Whitaker "has no such legal or ethical obligation to step aside" but agrees that "Whitaker should be recused. His repeated expression of hostility to the Mueller investigation makes it impossible for the public to have confidence in his ability to exercise the necessary prosecutorial judgment in supervising Mueller".[97][98] The Washington Post reported that according to people close to Whitaker, he does not have any plans to recuse.[99]

Lawyers Neal Katyal and George T. Conway III questioned the legality and constitutionality of the appointment based on the Appointments Clause.[100][101][102] Fox News senior judicial analyst Judge Andrew Napolitano posited that Whitaker is "not legally qualified for the role" as he is neither the Deputy Attorney General nor in a role that required Senate confirmation, and the senate is not in recess currently.[103][104] Lawyers Renato Mariotti and Laurence Tribe have argued that the Vacancies Act would not allow Trump to appoint Whitaker if Sessions was fired and that a court could conclude that Sessions did not resign but was fired.[92] John E. Bies, a former Obama Administration as a deputy assistant attorney general, has written that legality and constitutionality of Whitaker's appointment is an open question and it has not been answered. Bies also points out that it is a difficult argument to make that Sessions was fired instead of resigning since a court would probably not "look past an official’s formal statement that they resigned".[105] Law professor Stephen Vladeck argued that the U.S. Supreme Court decision United States v. Eaton allowed the appointment since it was temporary and that Sessions formally resigned.[93] Senate Majority Leader Mitch McConnell said "I think this will be a very interim AG."[106]

Democrats poised to assume chairmanships of key House committees in January 2019 warned the Justice Department and other departments to preserve records relating to the Mueller investigation and Sessions' firing. Republicans Senator Susan Collins, Senator Jeff Flake, and Senator-elect Mitt Romney, also issued statements insisting that Mueller's investigation must remain free from interference.[107]

Personal life[edit]

Whitaker has three children with his wife, Marci, a civil engineer.[108] In 2014 Whitaker attended Crossfit Open events and is a former college player for the Iowa Hawkeye football team.[109][110] Whitaker wanted to be in the film industry “I’ve always loved the film industry. There’s a lot of money out there in that industry. There’s no reason some of that can’t be mine.”[111] Whitaker is affiliated with Lutheran Evangelicalism.[112]

Electoral history[edit]

2002 Iowa State Treasurer[edit]

General election results[113]
Party Candidate Votes %
Democratic Michael Fitzgerald 534,714 54.77%
Republican Matthew Whitaker 421,574 43.18%
Libertarian Tim Hird 19,687 2.02%
Republican Write-ins 344 0.04%
Total votes 976,319 100.00%

2014 U.S. Senator for Iowa[edit]

Republican primary results[114]
Party Candidate Votes %
Republican Joni Ernst 88,535 56.12%
Republican Sam Clovis 28,418 18.01%
Republican Mark Jacobs 26,523 16.81%
Republican Matthew Whitaker 11,884 7.53%
Republican Scott Schaben 2,233 1.42%
Republican Write-ins 155 0.10%
Total votes 157,748 100.00%

References[edit]

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External links[edit]

Legal offices
Preceded by
Stephen Patrick O'Meara
United States Attorney for the Southern District of Iowa
2004–2009
Succeeded by
Nicholas A. Klinefeldt
Preceded by
Jeff Sessions
United States Attorney General
Acting

2018–present
Incumbent
Current U.S. order of precedence (ceremonial)
Preceded by
James Mattis
as Secretary of Defense
Order of Precedence of the United States
as Acting Attorney General
Succeeded by
Ryan Zinke
as Secretary of the Interior