Matthew Whitaker

Whitaker's U.S. Attorney portrait

Iowa Senator Chuck Grassley recommended Whitaker as one of three attorneys suggested to President George W. Bush for the position of United States Attorney for the Southern District of Iowa.[4] In February 2004, Bush nominated Whitaker to the position,[4] despite assertions that Whitaker lacked relevant legal experience.[19] Senate Democrats objecting to Bush nominees held up the nomination for four months before Whitaker was confirmed on June 15, 2004.[4]

In his first year in office, Whitaker issued a record 500 indictments, more than half of which were drug prosecutions, mainly related to trafficking of methamphetamine.[4] In July 2005, Whitaker joined neighboring U.S. Attorneys Michael Heavican and Charles Larson Sr. in issuing a warning that persons crossing state lines to obtain pseudoephedrine, a methamphetamine ingredient, could be prosecuted in federal court.[20] As U.S. Attorney, Whitaker sought stringent sentences for individuals charged with drug crimes. One case involved a non-violent drug offender who had previously been convicted of several drug-related crimes, and who was given the option by Whitaker's office, consistent with DOJ policy promulgated by Attorney General John Ashcroft,[21] of being prosecuted with the chance of spending the rest of her life in jail or accept a plea deal of 21 to 27 years in prison. Federal Judge Robert W. Pratt later said the prosecutors in the case had "misused" their authority and urged President Obama (who had then become president) to grant clemency; Obama commuted her sentence, after she had served 11 years in prison.[22]

Whitaker also served on the regional anti-terrorism task force, which examined both international and domestic threats,[4] and focused on prosecuting child pornography and violent crimes against children.[4] From 2005 to 2007, Whitaker's office, together with the Federal Bureau of Investigation, investigated and unsuccessfully prosecuted Iowa State Sen. Matt McCoy on charges of attempting to extort $2,000 in envelopes of cash.[23] 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.'"[24][25] The jury reached a verdict of "not guilty" within two hours.[26][27] In 2007, Whitaker also led the investigation of four executives of the Central Iowa Employment and Training Consortium (CIETC), a Des Moines-based job training agency, who were accused of collectively stealing more than two million dollars from the agency over a three-year period.[28] The alleged ringleader, CIETC CEO Ramona Cunningham, plead guilty on June 30, 2008.[29]

Whitaker resigned in November 2009 following the Senate confirmation of his replacement, Nicholas A. Klinefeldt, who was nominated by President Obama.[5][30]

From 2009 to 2017, Whitaker was a managing partner of the small general practice law firm Whitaker Hagenow & Gustoff LLP (later Hagenow & Gustoff LLP) in Des Moines, Iowa.[31] In 2011 Whitaker co-founded Whitaker Strategy Group, an Iowan lobbying and consulting firm that promoted business and job growth in Iowa.[32] In one case, Whitaker served as one of 24 attorneys representing twelve different law firms in defending ready-mix concrete manufacturers against class-action antitrust litigation. After the parties came to a swift and effective settlement of the case, Judge Mark W. Bennett of the Northern District of Iowa noted that "these settlements would not have been remotely possible without the highly experienced, skilled, and extraordinarily professional defense counsel in this case". The judge therefore took "the unusual step of listing them", including Whitaker, in the body of his opinion on attorney's fees.[33]

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.[34] Also in 2012, Whitaker and two partners invested in several successful real estate ventures together. They also invested, under a venture named MEM Investment, in the purchase and development of an affordable-housing apartment building in Des Moines.[35] In 2014, Whitaker's partners left this partnership, and by spring of 2016, the company was unable to complete the renovations on time, and the city terminated the loan agreement. The building was then sold and completed by another contractor.[36][37]

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, with 11,909 votes (7.54%). The nomination was won by Joni Ernst, who went on to win the general election.[38]

After losing the Republican primary, Whitaker chaired the campaign of Sam Clovis, another unsuccessful primary candidate who had been selected to run for Iowa State Treasurer.[39] Clovis lost in the November 2014 general election.[40][41][42]

In 2014, Whitaker was added to the non-fiduciary board of advisors of World Patent Marketing (WPM), a Florida-based company billed as an invention promotion firm. The board of advisors never met during Whitaker's service.[43] The company was later determined to have deceived inventors into thinking that the company had successfully commercialized other inventions.[44][45][46] In 2017, World Patent Marketing was fined $26 million and shut down by the Federal Trade Commission for deceiving consumers.[47][48] However, a spokesperson for Whitaker said that he was never aware of the company's fraud,[47] and the court receiver in the case said he had "no reason to believe that [Whitaker] knew of any of the wrongdoing".[49]

The company contributed to Whitaker's 2014 U.S. Senate campaign,[50] but over the three year period from 2014 and 2017 paid Whitaker less than $17,000 for work performed.[51] Customers who suffered losses as a result of working with the company claimed that the company used Whitaker's background as a U.S. Attorney to threaten them.[47][52] In one 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".[53][54] In an unverified report, the owner of Ripoff Report told The Wall Street Journal that Whitaker had called him in 2015 demanding his website take down negative reports about WPM, alleging, "He threatened to ruin my business if I didn't remove the reports. He [said he] would have the government shut me down under some homeland security law".[55][56] Whitaker has stood by his account that he has never spoken to this person and the conversation never occurred. 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 Department of Justice.[49] After Whitaker's appointment in the Department of Justice in September 2017, White House and senior Justice Department officials were reportedly surprised to learn of Whitaker's connection to the company.[49] Through a DOJ spokesperson, Whitaker denied awareness of the fraud alleged.[47]

From October 2014 to September 2017, Whitaker was the executive director of the Foundation for Accountability and Civic Trust (FACT);[57] he was the organization's only full-time employee in 2015 and 2016.[58] FACT, founded in late 2014, is a conservative nonprofit organization specializing in legal and ethical issues related to politics.[59][60] The group was backed by $1 million in seed money from conservative donors, whom Whitaker declined to identify to the media.[61] According to the organization's first tax return, its funding — $600,000 in 2014 — came from a conservative donor-advised fund called Donors Trust, a pass-through vehicle that allows donors to remain anonymous.[62] From its creation in 2014 through 2018, FACT reported contributions of $3.5 million on its tax filings; as a 501(c)(3) organization, it did not disclose its donors. The group's largest single expense was Whitaker's salary; Whitaker collected $1.2 million from the group over four years, making it the overwhelming source of his income from 2016 onward.[63]

While Whitaker was the head of FACT, the organization had a special focus on the Hillary Clinton email controversy and perceived favoritism in the business dealings of Clinton.[64] Despite claiming to be nonpartisan, the organization called for ethics investigations into or filed complaints for more than 40 different Democratic politicians, officials, and organizations, compared to only a few Republicans.[65] FACT was characterized by CNN reporter Drew Griffin as using "the legal system as a political weapon",[66] and it was reported that an unnamed source described as a "GOP operative" had characterized the organization as a "chop shop of fake ethics complaints".[67] During his time at FACT, Whitaker wrote opinion pieces that appeared in USA Today and the Washington Examiner, and he appeared regularly on conservative talk-radio shows and cable news.[68]

For four months, from June to September 2017, Whitaker was a CNN contributor.[69] One month prior to joining the Justice Department, he wrote an opinion column for CNN titled "Mueller's Investigation of Trump is Going Too Far".[70] He retweeted a link to an article that stated that Mueller's investigation was a "lynch mob", that it should be limited, and that it should not probe into Trump's finances.[71][72]

On September 22, 2017, a Justice Department official announced that Sessions was appointing Whitaker to replace Jody Hunt as his chief of staff.[71][73] George J. Terwilliger III, 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".[74]

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.[3][75] In that position, he directly supervised 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. President Trump said of the appointment, "Matt Whitaker is a highly respected person ... you know, once I choose somebody they always go through hell".[76]

Department of Justice, Department of Homeland Security, Department of Commerce and Federal Bureau of Investigation announces 23 criminal charges against China's Huawei and Meng Wanzhou.

In January 2019, Whitaker along with Homeland Security Secretary Kirstjen Nielsen, Secretary of Commerce Wilbur Ross, and FBI Director Christopher A. Wray announced 23 criminal charges against Chinese technology giant Huawei and its CFO Meng Wanzhou, including financial fraud, money laundering, conspiracy to defraud the United States, theft of trade secret technology, providing bonuses to workers who stole confidential information from companies around the world, wire fraud, obstruction of justice and sanctions violations.[77][78][79][80] On December 18, 2018, Whitaker signed the regulation that reclassified bump stocks as machine guns, rendering them illegal to possess under federal law.[81][82] Whitaker participated in the work of the Federal Commission on School Safety, committing the Department of Justice "to support first responders and provide training for law enforcement officers and school personnel".[83] He also initiated implementation of the First Step Act,[84] and oversaw successful efforts towards the reduction of drug overdose deaths between 2017 and 2018.

Assistant attorney general and spokesperson Stephen Boyd explained in a letter[85] to the leaders of the Senate that, if a recommendation was sought by DOJ ethics officials, they would advise recusal but that it was a close call and that credible arguments could be made either way. Boyd also stated that Whitaker made the determination not to recuse himself because among other reasons, there was no actual conflict, there were no examples of where any previous Attorney General acting or otherwise had recused himself or herself with respect to an appearance of impartiality analysis based upon prior public statements. The prior Department ethics analysis described by the ethics official as most relevant to this analysis concluded that no recusal was necessary by a senior Department official.[86]

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.[87] In February 2019, Whitaker testified before Congress that he had not interfered in any way in the special counsel investigation,[88] and in July 2019, Special Counsel Robert Mueller confirmed in his own testimony before Congress that there was no interference with the investigation.[89]

The U.S. Department of Justice's Office of Legal Counsel found that the appointment was constitutional due to its temporary nature.[90] The OLC noted that an assistant attorney general who was not confirmed by the Senate had been appointed as acting Attorney General in 1866, and that other individuals not confirmed by the Senate had served as principal officers in an acting capacity more than 160 times between 1809 and 1860, and at least nine times during the Trump, Obama, and Bush administrations.[91]

A number of prominent legal experts, scholars, and former prosecutors and Department of Justice officials offered varying opinions over the legality and constitutionality of Whitaker's appointment.[92] Stephen Vladeck, a law professor at University of Texas, argued that the appointment was permissible under the Federal Vacancies Reform Act of 1998 and the U.S. Supreme Court decision in United States v. Eaton, because it was temporary and because Sessions formally resigned.[93] Lawyers Neal Katyal and George T. Conway III argued in a New York Times op-ed that the appointment was unconstitutional under the Appointments Clause, as the position of Attorney General is a "principal" one requiring Senate confirmation.[94][95] Law professor John Yoo from Berkeley, who served as a deputy assistant attorney general in the Office of Legal Counsel in the George W. Bush administration, argued that the Appointments Clause renders the Federal Vacancies Reform Act unconstitutional and that Whitaker's appointment was in violation of that clause.[96] John E. Bies, who served as a deputy assistant attorney general in the Office of Legal Counsel in the Obama Administration, wrote that the legality and constitutionality of Whitaker's appointment was an open question. Bies also pointed out that it was 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".[97]

There were at least nine unsuccessful legal challenges to Whitaker's appointment.[98] Maryland Attorney General Brian Frosh, representing the State of Maryland, filed for an injunction against Whitaker's appointment.[99] Maryland had previously filed a suit against then-Attorney General Jeff Sessions regarding his inability to defend the Affordable Care Act in court as part of a broader hostility against the Obama-era law from the Trump administration.[100][101][102] Maryland was expected to test the argument in court that Whitaker was unlawfully named acting Attorney General, and thus had no standing in the court or authority to respond to their lawsuit.[103][104] Maryland argued that Whitaker's appointment violated the Constitution, which requires that principal officers of the United States be appointed "with the Advice and Consent of the Senate". Because Whitaker was not serving in a Senate-confirmed position when he was appointed,[103] the state argued that the role of acting Attorney General rightfully belonged to Deputy Attorney General Rod J. Rosenstein.[105] Presiding judge Ellen Lipton Hollander set a hearing for December 19, 2018,[106] and dismissed the case on February 1, 2019.[107] Other cases holding that Whitaker had been properly appointed to the position included United States v. Valencia in the United States District Court for the Western District of Texas,[108] and United States v. Penn in the United States District Court for the Southern District of California, based on the "thoughtful and well-reasoned" decision in Valencia.[109]

Three Democratic senators — Richard Blumenthal, Sheldon Whitehouse, and Mazie Hirono — filed suit on November 18, 2018, in the D.C. Circuit Court, saying the President violated the Constitution and denied the Senate its right to approve the nomination.[110] Lawyers for Doug Haning, a former agricultural products executive, filed a motion on November 13, 2018, asking a federal court in St. Louis to rule that Whitaker's appointment as acting Attorney General was illegal and thus he had no standing to hear the case.[106] South Texas College of Law professor Josh Blackman predicted a flood of similar motions.[106] Attorney Tom Goldstein filed a motion with the U.S. Supreme Court on November 16, 2018 on behalf of a Nevada resident, asking the court to decide whether Rod Rosenstein was the statutory and constitutional successor to Sessions in a pending lawsuit, rather than Whitaker.[111][112] The U.S. Supreme Court denied the motion on January 14, 2019.[113]

Whitaker stated in a question-and-answer session during his 2014 Iowa Senatorial campaign that "the courts are supposed to be the inferior branch".[114][115] Whitaker was critical of the U.S. 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. When Whitaker later became acting Attorney General four years later, Harvard Law School 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".[114]

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".[116] Although Whitaker never specifically commented on the ability of non-Christian judges to serve, Whitaker's answer was subsequently 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".[117]

Whitaker stated in 2013 he supports the right of states to nullify federal laws.[118] Stephen Vladeck of University of Texas 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".[118]

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.[119] During a six-month span in 2017, 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"[120] and "the left is trying to sow this theory that essentially Russians interfered with the U.S. election, which has been proven false".[121] He also published an op-ed titled, "Mueller's Investigation of Trump Is Going Too Far"[122] in which he expressed skepticism about the investigation generally and called the appointment of Mueller "ridiculous".[121] He also retweeted a link to an article that referred to the investigation as a "lynch mob".[71][122][123]

Trump saw 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. 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.[119] On November 13, a DOJ spokesperson said that Whitaker would seek advice from ethics officials at the Department of Justice (DOJ) about whether a recusal from overseeing the Russia investigation was warranted.[124]

In 2017, Vox writer Murray Waas, reported that an unnamed administration source claimed that Whitaker provided private advice to Trump on how the White House might pressure the Justice Department "to name a special counsel to investigate not only allegations of FBI wrongdoing but also Hillary Clinton".[125] Leonard Leo of the Federalist Society recommended Whitaker to McGahn as chief of staff for Sessions, and Whitaker was installed into that role at the direction of the White House. An anonymous source claimed that Whitaker wanted to replace Sessions, without the latter's knowledge.[126] By early September 2018, Whitaker was on the short list of President Trump's White House staff as the replacement for Don McGahn as the White House Counsel.[127][128] In September 2018, White House Chief of Staff John F. Kelly referred to Whitaker as the White House's "eyes and ears" in the Justice Department, which the president considered himself at war with.[129]

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.[130] 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.[129] 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 Twenty-fifth Amendment to remove Trump from office.[122] 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".[131][132][133]

In October 2019, after leaving the White House, Whitaker defended Trump amid the impeachment investigation into his conduct as president. Whitaker said there was no evidence of a crime by the President, and that "abuse of power is not a crime" in the Constitution.[134]

Whitaker's website previously stated that he was 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".[24][114][135] 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".[136] Whitaker claimed he was not a "climate change denier" but said that the evidence is "inconclusive" and indicated he did not support regulations on carbon emissions.[114]

He has expressed a desire to get rid of family reunification and is against amnesty for illegal immigrants.[114] Whitaker argued in 2014 that a blogger fired from his job for describing homosexuality as "sinful" had engaged in a legitimate expression of religious beliefs that should be considered 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".[137] Whitaker supported repealing the Affordable Care Act in his 2014 Senate campaign.[122]