Above the Law Read online

  There’s no doubt that Russia tried to influence the 2016 presidential election. That’s business as usual for the Kremlin, which, during the Cold War, had tried to defeat the presidential campaigns of Richard Nixon and Ronald Reagan.4 We need to guard against such foreign interference, and efforts to safeguard the 2020 elections are already underway. The Departments of Justice and Homeland Security work closely with federal, state, local, and private sector partners, including all fifty states and more than 1400 local jurisdictions, to support efforts to secure election infrastructure and limit risk posed by foreign interference. While I was Acting Attorney General, I joined then–Department of Homeland Security Secretary Kirstjen Nielsen in reviewing attempts at foreign interference. We issued a joint report concluding: “[T]here is no evidence to date that any identified activities of a foreign government or foreign agent had a material impact on the integrity or security of election infrastructure or political/campaign infrastructure used in the 2018 midterm elections for the United States Congress. This finding was informed by a report prepared by the Office of the Director of National Intelligence (ODNI) pursuant to the same Executive Order and is consistent with what was indicated by the U.S. government after the 2018 elections.” (See Appendix A for the full report.) But the political meddling within our own government, within the Justice Department, and within the intelligence community poses a far greater threat to Americans than any Russian internet troll farm. Without the rule of law, without respect for the Constitution, without honest administration in the Justice Department, we don’t have a republic.

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  I developed a deep affection for the Justice Department during my five and a half years as the U.S. Attorney for the Southern District of Iowa. It was there I discovered how good public service feels—even if it doesn’t pay what private sector lawyers can earn. In 2009, President Obama’s first Attorney General, Eric Holder, appointed Democrats to replace me and almost every other remaining Bush-appointed U.S. attorney. Fair enough; that’s a new President’s prerogative, and I gladly welcomed and briefed my successor, Nick Klinefeldt, to ensure a smooth transition. It was in the best interest of the Department and the U.S. Attorney’s Office in the Southern District of Iowa that the transition not interrupt the administration of justice.

  Now was the perfect time to start my own law practice. I have always had an entrepreneurial spirit, and few law firms were hiring during the Great Recession anyway. I believe there is no more honorable calling than public service, but I wondered whether I would ever have another opportunity to serve my community and country. In the back of my mind, I really doubted that I would have the privilege of serving in any future Republican administration. Setting out on a small business–owner track, I did enjoy the freedom and opportunity that private practice allowed. During the week of the 2012 election, for example, I successfully defended a client at a federal criminal trial while President Obama held a large outdoor rally blocks from the federal courthouse in Des Moines. Five years after leaving the U.S. Attorney’s office, I presented myself as a candidate in the Republican primary for U.S. Senate in 2014. (If I had to lose as badly as I did, I’m glad it was to now-Senator Joni Ernst, a dear friend.) Right after that, I put my legal background and passion for public service to work for the nonprofit Foundation for Accountability and Civic Trust, advocating for greater transparency and accountability in government. In that private sector capacity, I was writing op-eds and making occasional television appearances—never imagining my commentary would be held against me or that in a few short years I would be facing off against House Judiciary Chairman Jerrold Nadler, the New York City Democrat engineering President Trump’s impeachment.

  Contrary to news reports, President Trump didn’t locate me in Iowa by channel surfing. Former White House Counsel Don McGahn put the word out that he wanted another attorney to help respond to the Russia investigation. I interviewed for that role in the summer of 2017, but it ultimately went to Ty Cobb—the Washington, D.C., superlawyer who was favored by one of President Trump’s personal lawyers, John Dowd. Cobb is a distant cousin of the famous baseball player with the same name, but, more significant, he was a contemporary and friend of Robert Mueller’s. A different opportunity for me to serve would soon emerge.

  “I recommended him and was very supportive of him for chief of staff for very specific reasons,” Leonard Leo, the executive vice-president of the Federalist Society, told CNN. “Jeff Sessions needed a reliable conservative, a strong manager, and someone who had credibility—who had previously served the department.… Whitaker was a very good former U.S. Attorney and is a very good manager. He’s a no-nonsense, get-it-done kind of guy.”5

  I remain deeply humbled and very grateful for Leonard Leo and the Federalist Society’s faith in me. Their most illustrious members include Chief Justice John Roberts, and Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, and Brett Kavanaugh. The support of the Federalist Society was extremely important because President Trump was almost as new to Washington as I was, and he didn’t have an obvious pool of personnel to draw from. He wanted to find solid conservative appointees, and to that end, he relied heavily on recommendations from both the Heritage Foundation and the Federalist Society. The political establishment class—Republican and Democratic—had been shaken to its core by Trump’s election, and the resentment was palpable in Washington. Plenty of Republicans disliked him and his “outsider” appointees. A Daily Beast headline gave me a taste of their disdain for the President and anyone associated with him, including myself: “They Hate This Guy: Matt Whitaker Braces for Showdown with Dems.”6 But I also felt plenty of suspicion and hostility from the “insider,” “bipartisan” Washington lawyers who felt that positions like mine rightly belonged to them.

  As Jeff Sessions’ gatekeeper and an outsider to Justice Department politics, my goal was to advance the President’s agenda: reducing violent crime, combating international criminal organizations, and supporting law enforcement. We all felt it to be our moral imperative to back the men and women in blue and restore public support for them. I made it a point to walk the halls and meet people, to visit the agencies under the department, and to work out in the FBI gym. I usually walked to the office (until the surreal day when I entered the building as a chief of staff in the morning and left it that night with a security detail and armored Suburban as Acting Attorney General). The overwhelming majority of Justice Department employees I met performed their jobs conscientiously and honorably.

  And then there were those who held themselves above the law.

  * * *

  “No. No he won’t. We’ll stop it,” Peter Strzok, the FBI’s lead agent on the Russia investigation, replied in one of many above the law–attitude texts to fellow FBI agent Lisa Page, who had texted him, “[Trump’s] not ever going to become President, right? Right?!” How, I wondered then and now, could an FBI agent lawfully stop the election of a presidential candidate? My eighteen months at the Department of Justice left me with many troubling questions like that.

  Why did Acting FBI Director Andrew McCabe write a memorandum of a meeting where Rod Rosenstein suggested—in front of Strzok and Page whom he supervised—secretly wearing a wire to the Oval Office to prove that the President was mentally “incapacitated” and therefore possibly subject for removal from office under the Twenty-Fifth Amendment? Why was a Special Counsel appointed to investigate Russian interference in the election instead of a regular Department of Justice attorney? Why choose Robert Mueller, described by the Washington Post in 2017 as “Brothers in Arms” with Jim Comey, whom President Trump had just fired?7 Why did Rosenstein not recuse himself from the investigation, given that he wrote the memo that Trump cited as providing the grounds for firing Comey?

  Why didn’t Mueller properly vet the investigators joining the Special Counsel team? Not only did it include Strzok, but Andrew Weissmann who was apparently partisan—he had reportedly attended Hillary Clinton’s 2016 election night party and
had praised Acting Attorney General Sally Yates’s defiance of President Trump’s court-approved “travel ban” on several majority-Muslim countries—and had a reputation as a prosecutor willing to give faulty jury instructions to score a win. (Weissmann’s conviction of the auditing firm Arthur Andersen was reversed by the U.S. Supreme Court in a stunning 9–0 decision.8)

  Why did Mueller allow the Independent Counsel’s office to investigate for another twenty-two months after Strzok conceded to Page, via text in May 2017, “You and I both know the odds are nothing.… there’s no big there there.”9 (As the FBI’s Deputy Assistant Director of the Counterintelligence Division, Strzok knew well before I arrived in Washington that Trump hadn’t colluded with the Russians.)

  After Attorney General William Barr provided the public with a four-page summary of Mueller’s 448-page report highlighting that there was no evidence that President Trump had committed any crimes, why did Mueller issue a letter of complaint about the summary, erroneously claiming that “a central purpose for which the Department appointed the Special Counsel” was “to assure full public confidence in the outcome of the investigations,” when the report did not need to be made public at all?10 (See Appendix B for the full text of Barr’s report.) And why did Mueller go above the law, exceeding his authority by establishing an extralegal standard of prosecutorial “exoneration,” instead of making a “traditional prosecutorial judgment”—a recommendation on the basis of the evidence to prosecute or not prosecute—as required?

  Similarly bewildering, why did James Comey feel it was within his purview to provide the public with commentary on Hillary Clinton’s email investigation, or to store memos in his personal home safe, detailing seven of his conversations with President Trump while he was FBI Director?

  Why did Andrew McCabe—who succeeded Comey as FBI Director and was later fired for lying about leaking to the press—feel he was capable of overseeing the investigation into Hillary Clinton’s email scandal even though his wife had received $467,500 from a Clinton-related PAC for her 2015 bid for the Virginia Senate? Why did McCabe feel that “the threat” posed by President Trump warranted his leaks to the media that only served to enhance his own reputation, leaks he then blamed on innocent FBI subordinates in the New York field office?11

  And without evidence that any crime had been committed, why was McCabe allowed to add the President to the Russia investigation the day after Jim Comey was fired? (“I’m being investigated for firing the FBI director by the man who told me to fire the FBI director!” the President tweeted, referring to Rosenstein’s memo outlining Comey’s mishandling of Hillary Clinton’s email investigation.)

  Why did Justice Department official Bruce Ohr feel it was okay to shuttle information from his wife’s boss, who had been hired by the Democratic National Committee to conduct opposition research on Trump, to Andrew McCabe and Lisa Page at the FBI … even when he knew the information came from former British spy Christopher Steele, a source whom the FBI had itself fired and a foreign national who stated he was “desperate that Donald Trump not get elected”? Why would FBI attorney Kevin Clinesmith alter a government document to inflate the case for wiretapping a Trump campaign member? And why would McCabe and President Barack Obama’s Deputy Attorney General Sally Yates sign off on a foreign intelligence court application to spy on that campaign member, Carter Page, an American citizen, on the basis of the discredited Steele’s “dossier,” skipping the usual vetting process inside the Department of Justice for such applications?12 Why, if McCabe or anyone else at the FBI thought the Trump campaign had been breached by Russian efforts, didn’t they warn President Trump or his campaign and provide defensive briefings?

  There was no way for President Trump to change the culture at the Department of Justice without cleaning house. The FBI Director serves at the pleasure of the President, and firing him when he was breaking with long-standing DOJ policy and tradition is not obstruction of justice. It’s evidence of executive leadership and fully within the President’s power.

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  Even in ordinary times, the President depends on his Attorney General to pursue his agenda inside the Justice Department. That’s why John F. Kennedy chose his brother Robert for the job, and why Barack Obama’s Attorney General, Eric Holder, called himself the President’s “wingman.” Adherence to the law, discretion, and judgment are key parts of law enforcement. A President needs to identify three or four priorities and rely on the Attorney General to elevate those above others. The Attorney General is not the President’s private lawyer and, like any other political appointee, serves at the President’s pleasure.

  Given the extraordinary mutiny fomenting inside the Justice Department after the 2016 presidential election, one could understand why the new President would hope for, at least, guard rails and an endpoint around a Special Counsel investigation. Otherwise, such an investigation could be nearly limitless. “This is the end of my presidency,” Trump reportedly told Sessions after he learned that Rosenstein had appointed a Special Counsel. “Everyone tells me if you get one of these Independent Counsels it ruins your presidency … It takes years and years, and I won’t be able to do anything.”13 President Trump knew that no matter how innocent he was, the political cost of a special prosecutor’s investigation could be crippling. And for most Presidents, it would have been. But not this President. He was energized and would fight back.

  My time at the Justice Department overlapped with retired U.S. Marine Corps General John Kelly’s tenure as President Trump’s White House chief of staff. General Kelly attempted to impose order, discipline, and an organized process for getting things done at the White House. He had been Secretary of Homeland Security and a Four-Star General. He was someone I respected and needed to get along with for the success of the administration. On my first day on the job, he shared with me his frustrations with the Department of Justice. He expected me to improve its management. General Kelly expected that the Justice Department, as an executive branch cabinet office under the President’s authority, would advance the President’s priorities. And we did, despite all the resistance throughout the Department. Between 2017 and 2019, we had so many important accomplishments, an entire book could be dedicated to the great work of the men and women at DOJ. To give just a few examples, we changed federal regulations to ban the “bump stock” devices that effectively convert legal rifles into illegal machine guns, we convicted El Chapo, we charged the Chinese telecommunications company Huawei with financial fraud and theft of trade secrets, and we sentenced to prison five members of a Mexican sex-trafficking organization that had been trapping young girls in modern day slavery for a decade. Eradicating sex trafficking has been a priority of mine since I became a U.S. Attorney.

  I also had the honor of representing the executive branch when I presented the presidential commission of newly confirmed Brett Kavanaugh to the United States Supreme Court at the ornate U.S. Supreme Court chambers. It was an event attended by the who’s who of the legal community, including three former Attorneys General, John Ashcroft, Alberto Gonzales, and Michael Mukasey. As is tradition at the Court, DOJ lawyers must wear morning coats. The day before the event—the day I was appointed—Solicitor General Noel Francisco came by to make sure I had the requisite coat and let me borrow one from his office. I appreciated his wise legal counsel, sartorial help, and friendship; he is an example of the Department of Justice at its best. But, according to President Trump’s gleeful report, the First Lady noticed that coat did not quite fit my 6’4" former football player’s frame.

  During my time as chief of staff, when the atmosphere was often tense at the Justice Department, crazy headlines—traceable to leaks from within the building—often strained our relations with the White House. One day in particular I remember General Kelly was so frustrated with the Department of Justice that he snarled at me in the Oval Office. I was at the end of my tether too, and I jokingly challenged him to a fight. I’m thankful we didn’t come to blows in
the Oval Office (he would have won of course), and both of us continued to work closely on behalf of the American people after that day.

  The presidential policy closest to my heart was showing support for local law enforcement, who were suffering a major crisis of morale after eight years of being thrown under the bus by the Obama administration.14 The number of law enforcement officers committing suicide has been continually rising, exceeding the number killed in the line of duty according to Blue H.E.L.P.15 So I decided to ask the President for a favor: Would he fly to Kansas City on December 6, 2018, to address the Project Safe Neighborhoods Conference? Project Safe Neighborhoods (PSN) is an initiative at the Department of Justice that focuses federal resources, especially from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and U.S. Attorneys’ offices, to collaborate with local police departments in neighborhoods experiencing the most serious violent crimes, including those involving guns. PSN cases that would otherwise be handled by local prosecutors are instead prosecuted federally, often resulting in a stiffer sentence for gun crime defendants. This was the only time I asked the President for something directly—admittedly bad form from someone who knows what it’s like to be a gatekeeping chief of staff. The President, as one might expect, had many things on his plate, including weathering the latest fake news leaks from the Russia investigation. When I met him at the White House the morning of the conference, he asked in frustration: “Why are we going to Kansas City today? Whitaker, you and the great cops are the only ones I would do this for!” Jared Kushner and I followed him out to the White House lawn and onto Marine One on our way to board Air Force One.