Controversy is growing over President Trump’s selection of Matt Whitaker to serve as acting attorney general following the ousting of Jeff Sessions. The state of Maryland is heading to court today to challenge the legality of Whitaker’s appointment. The state contends that Deputy Attorney General Rod Rosenstein should have been named acting attorney general instead of Whitaker, who was not confirmed by the Senate for his previous post—chief of staff to Sessions. Meanwhile, pressure is growing on Whitaker to recuse himself from overseeing special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election. We speak with Ian Millhiser, senior fellow at the Center for American Progress Action Fund and the editor of ThinkProgress Justice.
AMY GOODMAN: This is Democracy Now!, as we turn now to our last segment today, back here in the United States. Juan?
JUAN GONZÁLEZ: Well, controversy is growing over President Trump’s selection of Matt Whitaker to serve as acting attorney general following the ousting of Jeff Sessions. The state of Maryland is heading to court today to challenge the legality of Whitaker’s appointment. Maryland contends that Deputy Attorney General Rod Rosenstein should have been named acting attorney general instead of Whitaker, who was not confirmed by the Senate for his previous post—chief of staff to Sessions.
Meanwhile, pressure is growing on Whitaker to recuse himself from overseeing special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election. Politico reports Whitaker is now consulting with ethics officials regarding possible recusal due to his past comments on the Mueller probe and his close relationship with former Trump campaign official Sam Clovis, who has testified before a federal grand jury as part of the probe.
AMY GOODMAN: Questions are also being raised about Matt Whitaker’s past, including his role at a company called World Patent Marketing. Last year, the Federal Trade Commission shut down the company after a number of inventors, including military veterans, said the company cheated them out of their life savings. As acting attorney general, Whitaker will now oversee the FBI, which is still investigating the company.
Whitaker is also facing criticism for his remarks about the role of the judiciary. He’s on the record saying the Supreme Court wrongly decided the landmark 1803 case Marbury v. Madison, which gave courts the power to strike down unconstitutional laws.
We go now to Washington, D.C., where we’re joined by Ian Millhiser, senior fellow at the Center for American Progress Action Fund, editor of ThinkProgress Justice. His recent piece on Whitaker is headlined “This 2014 interview of Trump’s acting attorney general is beyond belief.” Explain what it is, Ian.
IAN MILLHISER: Sure. So, I mean, when you read that interview, the impression you get is someone who’s not very sophisticated, who is sometimes making contradictory statements two or three sentences apart, but who really wants to show how radical he is. So, you know, he comes out against climate—he’s a climate change denier. He comes out against Obamacare over and over again.
And the paragraph that I focused on and that a lot of people focused on says two things. The first, he comes out against Marbury v. Madison, which, like you said, is the Supreme Court decision saying that the Supreme Court is allowed to strike laws down as unconstitutional. And then, two sentences later, he says that, “Oh, and in the New Deal era, the Supreme Court should have struck down things like Social Security and the minimum wage.” So, you know, there’s a lot of things going on there, but one of the things that’s going on is those are just two inconsistent statements. And if this guy had the sort of organized mind that you look for in a potential Cabinet official, he wouldn’t be making those two statements.
JUAN GONZÁLEZ: Well, Ian, what about this whole issue of whether it’s constitutional for President Trump even to—
IAN MILLHISER: Yeah.
JUAN GONZÁLEZ: —to appoint him as attorney general?
IAN MILLHISER: Yeah. I mean, I think there’s a strong argument that he cannot serve, at least as acting attorney general. The Constitution refers to two types of officers who are appointed by the president. Principal officers are officers who are the most senior officers. They answer directly to the president, and they typically have tremendous authority. These are your Cabinet secretaries. And then it also refers to inferior officers, who are the people who answer to a principal officer or to another inferior officer. The attorney general is a principal officer. And the Constitution says that principal officers have to be confirmed by the Senate. So I think there’s a very strong legal argument here that this guy cannot serve as acting attorney general and that Trump needs to find someone else who serves in a Senate-confirmed role.
AMY GOODMAN: And his comments—talk about the theory in the school he comes from that says that the judiciary is not co-equal branch of government with the executive.
IAN MILLHISER: Right. I mean, I think it’s giving Whitaker a bit too much credit to say that he comes from any particular school of thought. I mean, the only thread that I can see throughout Whitaker’s writings and his statements is that he thinks that Republicans should always win. And he sort of vomits out talking points that have been used in the past to justify Republican victories. But again, like, many of his statements are inconsistent with each other. Like, he’ll say, in one breath, that the Supreme Court shouldn’t be deciding constitutional cases at all, and, in the next breath, say that the Supreme Court should have struck down a bunch of laws that he thinks are unconstitutional. So, you know, he doesn’t appear to have any driving legal theory. He just says things that he’s heard that lead to the outcomes he likes.
AMY GOODMAN: So, can you talk about—you know, the story is, his friend and ally, Clovis—
IAN MILLHISER: Right.
AMY GOODMAN: —who is the Trump campaign manager in Iowa, told him to get on TV, start speaking out against the Mueller probe—
IAN MILLHISER: Right.
AMY GOODMAN: —you’ll get Trump’s attention, and then you’ll get appointed. And so that’s exactly what he did.
IAN MILLHISER: Yeah.
AMY GOODMAN: He said, “Defund the Mueller probe. You can do anything you want to shut it down.” And he becomes the attorney general.
IAN MILLHISER: Yeah.
AMY GOODMAN: Comment on that and Trump saying he doesn’t even know the guy—
IAN MILLHISER: Right.
AMY GOODMAN: — though, clearly, he’s been to the White House scores of times—
IAN MILLHISER: Yeah.
AMY GOODMAN: —and Trump himself said that he knew him, in a previous comment.
IAN MILLHISER: Yeah. Apparently, he was Trump’s spy. Like he was literally on the phone with Trump, you know, giving information about what’s going on in the Justice Department.
I mean, let’s back up a second. Let’s go back to two years ago. When Trump came to Washington, he didn’t know very many people. And so his original list of appointees were this hodgepodge of like people the Republican Party told him to appoint, a few campaign surrogates. There’s actually a shocking number of government jobs, including a bunch of ambassadorships, that are still open, because Trump doesn’t know who to appoint to those jobs.
And what I think the Whitaker appointment shows is, after two years in Washington, he’s starting to learn who his cronies are. He’s starting to learn who the people are who are absolutely reliable, who won’t put the rule of law over the rule of Donald Trump. And he’s trying to get those people into key jobs. And so, that’s what I think is driving this appointment, is that Trump has been here in D.C. long enough that he knows, “Oh, that guy right there, if I make him attorney general, he’ll do whatever I want.”
JUAN GONZÁLEZ: And what do you know about Whitaker’s past legal record? And could you compare him in some way, if it’s possible, to the person he’s supposedly temporarily succeeding, Jeff Sessions?
IAN MILLHISER: Right. I mean, Jeff Sessions—I mean, Jeff Sessions is a terrible, racist human being, but he had a pretty typical résumé for a Cabinet official. You know, he was a U.S. attorney in Alabama. He was attorney general of Alabama. He was a United States senator for many years. That’s the sort of experience that you normally look for in someone who has that kind of job. And it also included some very serious legal experience.
When you look at Whitaker, I mean, Whitaker did serve as a U.S. attorney, but it turns out that like he probably got that role because he was one of the officials the Bush administration appointed to bring politically motivated prosecutions. His record before he was attorney general, I mean, he spent a lot of time as a personal injury attorney, which is not the sort of résumé line you normally look for in a potential U.S. attorney or in a potential attorney general. So he’s kind of this mediocre lawyer, who doesn’t understand very much about the Constitution, who doesn’t know enough to know that he’s sometimes saying things in the same paragraph that contradict each other. But what he has done throughout his career, both in the Bush administration and in Trump administration, shown that he’s willing to do the dirty work that the Republican Party wants done. And that’s been very good for his career.
AMY GOODMAN: Finally, before we go, the latest news in Arizona, Democrat Kyrsten Sinema has won the race for U.S. Senate, defeating Republican former U.S. Air Force pilot, colonel Martha McSally.
IAN MILLHISER: Yes.
AMY GOODMAN: She replaces outgoing Republican Senator Jeff Flake, who’s retiring. Sinema worked for Ralph Nader’s presidential campaign in 2000. She becomes the first woman elected to the Senate from Arizona, the first Democrat to win a Senate seat from Arizona in 30 years, the first openly bisexual senator. Talk about the significance of this victory.
IAN MILLHISER: Yeah. I mean, it’s a big deal to see a Democrat elected from Alabama. This is Barry—or, not from Alabama, from Arizona. This is Barry Goldwater’s state. Sinema is a very savvy politician. I’ve been watching her since she was in the state Senate, and she’s just very, very good at reading her electorate. I will say one other thing, though, which is, I mean, it’s good news for Democrats that they got this Arizona seat, but the trend we’re seeing in the Senate is very frightening, because each state gets two senators regardless of how big it is. So, Wyoming gets the same number of senators as California, even though Wyoming has 1/68th of the people of California. Republicans tend to cluster—tend to be in smaller states. Democrats tend to cluster in urban regions. And so the trend we’re seeing in the Senate is very, very frightening and leads to the point where Republicans may have permanent control over the body. And you just don’t want one party to have permanent control over an entire house of the Legislature.
AMY GOODMAN: And then you have Martha McSally, while she lost, she might well—what? Senator Kyl, who wanted to retire, could step down, and she could be appointed as the other senator. Then there would be two women representing Arizona. But your point taken. Ian Millhiser, I want to thank you for being with us. There are two Senate races left unresolved. There’s the race that goes to a runoff in Mississippi, and, of course, Florida, and that is being recounted. Ian Millhiser, senior fellow at the Center for American Progress Action Fund, editor of ThinkProgress Justice.