Mukasey: ‘No Reason’ for Acting AG to Recuse Himself from Mueller Probe, But There’s ‘Reason to be Hesitant About His Authority’

By Melanie Arter | November 13, 2018 | 3:50pm EST
Former Attorney General Michael Mukasey (Screenshot)

( – Former Attorney General Michael Mukasey, who served under President George W. Bush, told Fox News on Tuesday that President Donald Trump has the right to appoint who he wants as the interim attorney general “within certain limits.”

“He has a right to vote in an acting attorney general who qualifies under … the Vacancy Reform Act, which is – and Matt Whitaker fits that description. However, the question is whether he also qualifies under the Constitution. That’s a much closer call,” Mukasey said.

“The issue there is that under the Constitution, the president can appoint what’s called a principal officer … a principal officer who has to be subject to the advice and consent of the Senate. The president can fill certain vacancies only with the advice and consent of the Senate. The attorney general position is one of those,” he said.


“Now the question is whether somebody who is acting attorney general would have to be somebody who’s been confirmed, and there are people available who have been confirmed. [Deputy AG] Rod Rosenstein is one of them. I think he’s got a lot of conflicts and would be an unwise choice, but the Solicitor General Noel Francisco would be perfectly fine,” Mukasey said.

Mukasey said Trump can’t nominate acting Attorney General Matthew Whitaker as the actual attorney general under the statute.

“He can’t serve as acting attorney general if you haven’t been confirmed in that position, but the question is whether you’ve been confirmed in another position and whether you’re considered a principal officer,” he said.

“And the problem here is that if it turns out that an acting attorney general is a principal officer, and Matt Whitaker has not been confirmed by the Senate in any position, then anything he does that can be done only by a confirmed attorney general is void. There are some things that can be done by--- that can be delegated to somebody else. Those things would be perfectly valid,” Mukasey said.

Rep. Adam Schiff (D-Calif.) wrote an op-ed in the Washington Post Tuesday, saying, “If he does not recuse himself, Whitaker could seek access to the special counsel’s plans and evidence, including grand jury testimony, and would be in a position not just to funnel information to Trump and his legal defense team but also to abuse his authority to cripple or end the investigation. Whitaker could attempt to prevent evidence from reaching Congress and the public or stop the special counsel from subpoenaing important testimony, including from Trump himself.”

“Sure, Whitaker could also go out and strangle his grandmother. I mean please, that’s ridiculous,” Mukasey said in response.

Mukasey said there’s no reason for Whitaker to recuse himself from the Mueller probe, but there is a “reason to be hesitant about his authority.”

“There’s no reason to recuse himself. There’s reason to be hesitant about his authority, but there’s no reason for him to recuse himself based on statements he made earlier. That’s absurd,” Mukasey added.


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