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

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

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