As the smelting furnaces of digital ink are largely focused on Michael Cohen pleading guilty to making false statements, a little-noticed development not yet confirmed by the Department of Justice (DOJ) dropped on Thursday that could have much wider implications for special counsel Robert Mueller.
According to The Washington Post, Acting Attorney General Matthew Whitaker was notified in advance of the impending Cohen criminal information and plea agreement. Per reporter Matt Zapotosky, this advance notice was provided to Whitaker in line with currently operative “special counsel/Justice Department policies.”
But the Post report doesn’t offer much more than that:
Justice Department policies and special counsel regulations call for the attorney general to be notified of significant events in such investigations, and a person familiar with the case said Whitaker was notified ahead of time about Cohen’s plea.
Left unsaid or explored in this report is whether or not President Donald Trump was kept abreast of the Cohen news before the general public. Such assumptions are likely to follow the news of Whitaker’s advance knowledge–indeed, a cursory glance at social media vindicates the supposition. The acting attorney general is widely perceived to be a staunch Trump ally chosen for the role due to his reputation as a company man and Trump’s inside track to the previous goings on at the Jeff Sessions-led DOJ.
Beyond the issue of advance knowledge, however, are what this news means about the DOJ, now, generally.
Former Assistant U.S. Attorney Daniel Goldman noted the broader import of the Whitaker news.
“If true, that means that Whitaker has been cleared by ethics officials (or had rejected recommendation to recuse), even though DOJ won’t comment on this,” he tweeted. “This is a significant development.”
In other words, not only has Whitaker fully eased into his controversial–and hotly disputed–role at the head of DOJ, he’s also taken at least some of the reins related to Robert Mueller’s special counsel investigation as well.
Opinions among the legal cognoscenti on what the Whitaker news really means for Mueller and his army of attorneys are currently mixed–and even a bit muted–due to the comment decidedly not forthcoming from Whitaker’s DOJ on anything Mueller or Trump related.
Count former solicitor general Neal Katyal as somewhat leery of the development.
“Mueller’s felony conviction of Trump’s top lawyer Cohen raises [an important question],” he tweeted. “How can DOJ still be hiding the basic fact of whether Whitaker is overseeing Mueller and if he has ethics signoff [sic] despite his bias? This is an investigation for the American people. We have a right to know.”
Katyal then followed up his attack on Whitaker’s authority.
“The only way Whitaker could get that advance notice was if he is cleared from his multiple bias issues by the Ethics Office,” he noted, again, on the popular micro-blogging site. “For them to so conclude such a thing given what Whitaker has previously said about this specific investigation would be, well, shocking. Release the memo.”
Former U.S. Attorney Preet Bharara counseled a much more sanguine outlook.
“Notable: presumably Acting AG Whitaker approved the plea agreement and charges of lying to Congress against Michael Cohen, which is damaging to Trump,” he tweeted. “[This] signals more damage to come.”
Or does it?
As the Post reporter who broke the news noted, “Remember, [Whitaker] doesn’t have to approve, but he can veto.”
[image via Chip Somodevilla/Getty Images]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
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