Rosenstein’s would-be replacement said he would have indicted Hillary Clinton

Matt Whittaker at 2014 Iowa Senate Republican debate. (Screengrab)
Matt Whittaker at 2014 Iowa Senate Republican debate. (Screengrab)

Matthew G. Whitaker, who reportedly would become acting deputy attorney general should Rod Rosenstein get fired or resign, wrote in a July 2016 USA Today opinion piece that he would have indicted Hillary Clinton for criminal violations of the Espionage Act.

Rosenstein’s departure in itself would cross a red line set by Democrats and resistance groups defending the rule of law. Whitaker’s views on indicting Clinton now adds to those concerns.

Whitaker, writing soon after then-FBI Director James Comey took the extraordinary step of preempting a Justice Department decision about whether to bring charges, argued that Clinton’s handing of classified email amounted to gross negligence as described in 18 U.S.C. section 793(f).

“Director Comey’s judgment was that ‘no reasonable prosecutor‘ would bring the case,” Whitaker wrote. “I disagree.”

Whitaker is now chief of staff to Attorney General Jeff Sessions. Justice officials told the New York Times on Monday that while Noel J. Francisco, the solicitor general, would assume oversight of the Russia investigation in lieu of Rosenstein, Whitaker would become acting deputy attorney general.

Only days after Whitaker wrote his op-ed, delegates to the Republican National Convention in Cleveland were roaring “Lock Her Up.” It became the convention’s unofficial slogan – and a major feature of campaign rallies.

Trump himself, in the second presidential debate in October 2016, threatened Clinton. “I’ll tell you what. I didn’t think I’d say this, but I’m going to say it, and I hate to say it. But if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation,” he said. When Clinton replied that “it’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country,” Trump shot back: “Because you’d be in jail.”

There is so much wrong with a political party, a presidential candidate, and then a president calling for the criminal indictment of their ultimately defeated political opponent that most news organizations don’t explain. I guess they assume that it’s so core to democratic rule that people understand it intuitively.

But they’re wrong. It’s important to explain these things. And I’ll give it a try:

  1. The criminalization of politics is a violation of core democratic values including freedom of speech. We don’t put people in prison for their viewpoints.
  2. Jailing your political opponents is the act of an authoritarian regime, not a democratic one.
  3. Presidents can’t just use the executive branch’s law enforcement powers however they want.  Article II, Section 3 states that the president “shall take Care that the Laws be faithfully executed.” The means, among other things, that the president may not act for corrupt or self-interested reasons. And, as the Protect Democracy Project explains: “While he may shape generally applicable enforcement priorities, he may not prevent the enforcement of the laws that Congress has enacted against himself or his allies.”
  4. The use of prosecutorial power for political reasons undermines confidence in the Constitutional right to due process and equal protection under the law.

I could and probably should go on, but I’ll leave it to readers (in the comment section) and future blog posts.

As for Whitaker, he weighed in again in May 2017 with an opinion column at The Hill defending Trump’s decision to fire Comey.

Comey “served his country honorably,” Whitaker wrote. “[B]ut he also became so embroiled in the heated politics of the 2016 election and its aftermath that change was needed. President Trump made the right decision.”

He repeated his case against Clinton:

Clinton set up an entire secret, unsecured communications structure outside of the government she was charged with serving at the highest level; she was the Secretary of State. Classified information that, in the wrong hands, could potentially bring harm to our country – and many in service to our country – was available to be appropriated. Her server was hacked by multiple countries and unfriendly actors.

[There is, in fact, no evidence that Clinton’s servers were hacked.]

And although Whitaker wouldn’t oversee Mueller’s investigation (you can’t have an “acting acting attorney general), it’s pretty clear what he thinks of it.

Whitaker wrote that he hoped Comey’s firing would herald “a fresh slate for the FBI and the Department of Justice.”

And by that he clearly meant the end of any investigations of Trump campaign collusion with Russia. In his view:

Calls for an independent counsel or commission to investigate allegations that Russia tried to interfere with our elections ring hollow when similar calls for special counsels during the scandals of the Obama administration were dismissed out of hand by the same people making these demands now….

Hollow calls for independent prosecutors are just craven attempts to score cheap political points and serve the public in no measurable way.

At the time he wrote both pieces, Whitaker was serving as executive director of the nonprofit Foundation for Accountability and Civic Trust (FACT), oOne of several right-wing dark-money groups that fought President Obama’s nomination of Merrick Garland to the Supreme Court.

Right Wing Watch, a project of People for the American Way, took note of comments Whitaker made during his unsuccessful run for the Iowa Republican Senate nomination in 2014. Asked at a debate what criteria he would use to determine whether to support or attempt to block President Obama’s federal judicial nominees, Whitaker said that he would ask if nominees are “people of faith” and “have a biblical view of justice.”

“As long as they have that worldview, then they’ll be a good judge,” he said. “And if they have a secular worldview, where this is all we have here on earth, then I’m going to be very concerned about how they judge.”

Whittaker was hired by Sessions to be his chief of staff in October 2017.

Who’s resisting who? Michelle Alexander’s excellent first New York Times column

Michelle Alexander (MSNBC screengrab)
Michelle Alexander (MSNBC screengrab)

Did you read Michelle Alexander’s inaugural opinion column in the New York Times over the weekend? If not, kindly read it now.

The announcement in June of her hiring as a Times opinion columnist – as a black woman, as an eloquent, erudite civil rights activist, and as a holder of unshakeable ideals — was cause for celebration, especially given several other recent hires.

Now, her first column is out and it’s a powerful, progressive call to arms in the form of questioning the chief rhetorical conceit of the Trump era. Her alternate formulation: It’s Trump who’s resisting, not the “resistance.”

And what is he resisting? Nothing short of “the struggle for human freedom and dignity” and “the centuries-long quest to create a truly equitable democracy…. A new nation… a multiracial, multiethnic, multifaith, egalitarian democracy in which every life and every voice truly matters. ”

When you recognize that, you recognize that simply resisting Trump is not enough. Alexander explains:

Resistance is a reactive state of mind. While it can be necessary for survival and to prevent catastrophic harm, it can also tempt us to set our sights too low and to restrict our field of vision to the next election cycle, leading us to forget our ultimate purpose and place in history.

Alexander’s primary focus has been on changing the criminal justice system. in 2010, she wrote what has become a seminal book in modern civil-right-activism: “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

The book began a long overdue and still ongoing national conversation about how the war on drugs and the resulting mass incarceration of poor people of color is effectively – and not accidentally – a racially-biased system of social control reminiscent of Jim Crow.

I’m proud to say that I was on the jury for one of the first (but hardly the last) prizes conferred on the book, the Constitution Project’s 2010 Constitutional Commentary award. Read Alexander’s devastating acceptance speech.

Different people will take different things away from Alexander’s column.

My biggest takeaway is that in the area that concerns me the most — the accumulation of power by the executive branch and the absence of effective check and balances – resisting Trump is, just as she writes, not nearly enough.

I’ve never been clear on what “the resistance” really is, or does. But I do know that any group that includes advocates of near-absolute executive power –just because they happen to share a temporary aversion to a specific president — can’t be trusted to pursue the kinds of reforms this country so desperately needs.

The good news is that the new and old groups out there fighting to preserve the independent judiciary, advocating for a more activist Congress, warning about the president’s unilateral national-security powers, and conducting intense oversight seem to be looking beyond the end of the Trump presidency.

The key is not just to be satisfied once Trump is gone.  It’s to learn from all the ways he violated norms, broke rules, coopted a major political party, used disinformation for political gain, attacked the judiciary, politicized law enforcement and the military, ignored foreign interference in our elections, turned the American people against each other, and generally demonstrated that the constitutional system of checks and balances is dramatically out of whack.

And then try to fix things.

Firing Rosenstein would cross a red line drawn by Democrats and resistance groups defending the rule of law

Rosenstein testifying on the Hill in December 2017. (
Rosenstein testifying on the Hill in December 2017. (

A New York Times article based on second- and third-hand reports from anonymous sources about comments Deputy Attorney General Rod Rosenstein made in the Spring of 2017 is being widely – and legitimately — perceived as someone’s attempt to pave the way for Trump to fire him.

Rosenstein is overseeing Robert Mueller’s special counsel investigation into possible collusion between the Trump campaign and the Russian governments, after Attorney General Jeff Sessions recused himself.

For Trump, who just last week tweeted about the “Illegal Mueller Witch Hunt,” getting Rosenstein out of the way would be an obvious first step to either de facto or de jure  closing down Mueller’s investigation.

A number of contingencies in place should Trump fire Mueller would also go into operation if he fires Rosenstein.

The Mueller Firing Rapid Response network includes dozens of grassroots groups like, Common Cause, Public Citizen, the American Federation of Teachers and the Service Employees International Union.

Over 400,000 people have already signed up and promised to take to the streets — at more than 900 events, in every state — within hours of Trump crossing one of the agreed-upon “red lines” for the rule of law.

And the network’s plan specifies that the line would be crossed by “Actions that would prevent the investigation from being conducted freely, such as replacing Deputy Attorney General Rod Rosenstein.”

“Obviously, today’s report in the New York Times has us again looking closely at our plans to confirm we’re prepared in the event that Trump fires Rosenstein and attempts to interfere with the independent investigation being led by Robert Mueller,” said Brian Stewart, a spokesman.

Congressional response, while less predictable, would also be quick.

In February, Congressional Democrats sent Trump a letter warning him that “Firing Rod Rosenstein, DOJ Leadership, or Bob Mueller could result in a constitutional crisis of the kind not seen since the Saturday Night Massacre.”

And in April, Sen. Chuck Schumer told reporters: “I’d like to make something crystal clear to the president. Mr. President, any attempt to remove Rod Rosenstein will create the exact same constitutional crisis as if you fired Special Counsel Mueller. Don’t do it, do not go down this path. For the sake of our country, we plead with you. Don’t put this country through a constitutional crisis. Whether by firing Mueller, Rosenstein, or otherwise impeding this investigation from going forward. The rule of law is paramount in this country. No man, not even the president is above it.”

Press coverage of Trump’s grotesque tweet fails miserably to explain what’s wrong with it


Donald Trump’s morning tweet doubting Brett Kavanaugh’s accuser’s allegation of sexual assault was grotesque: pernicious and ignorant in the presumption that all sexual assaults are reported; misogynistic in its implication that the sexual assault wasn’t “as bad as she says”; dishonest in that he said he had “no doubt” about something he knew wasn’t true; and combative in that it dared her to bring forth nonexistent documents.

But to the New York Times, at least in its “breaking news” alert and initial report by Eileen Sullivan, it was only newsworthy because it “ended his dayslong restraint from commenting on the accusations.”

That was the only context provided.

Otherwise, the Times reprinted the tweet and then quoted from it.

At the Washington Post, John Wagner and Seung Min Kim added some context, but only after the first several paragraphs, noting:

Ford said she told no one at the time what had happened to her. She was terrified, she said, that she would be in trouble if her parents realized she had been at a party where teenagers were drinking, and she worried they might figure it out even if she did not tell them.

She said she recalled thinking: “I’m not ever telling anyone this. This is nothing, it didn’t happen, and he didn’t rape me.”

The Associated Press story by Alam Fram and Lisa Mascaro is, as of this writing, primarily about “Trump’s apparent shift in strategy.”

The National Institute of Justice, citing the Bureau of Justice Statistics, findd that “only 36 percent of rapes, 34 percent of attempted rapes, and 26 percent of sexual assaults were reported.”

The fact is that after sexual assault, it’s hard to know how to react — especially if you’re a minor.

Stories about Trump’s tweets shouldn’t be simply about the fact that he tweeted them. And they shouldn’t just assume that readers can understand what’s so wrong about them. Journalism requires context, here more than ever.

Previous presidents earned the presumption that most of what they said was worth reporting simply as news, with the context coming later. Not this president.


Highly relevant video from last night:

A good dissection:

And a father weighs in:

A New York Times columnist heard from:

Inae Oh at Mother Jones also points out that “Trump’s parallel made no mention of the string of sexual assault allegations—many of which include the very details of “date, time, and place” he claims is lacking in Ford’s story—that have been made against him.”

Appropriate speculation about motive:

Here is some research documenting the reasons why sexual assaults victims do not report immediately. (Hat tip: @bmyeung.)

It’s often fascinating to see breaking New York Times stories develop over the course of the day, using Newsdiffs. Here are the first set of changes made to the original version of the Trump tweet story, including the addition of a new fourth paragraph that says: “Many women are reluctant to come forward and report sexual assaults to authorities, in part because they fear they will not be believed.”