US Acting Attorney General Matthew Whitaker chose not to recuse himself from the Russia investigation even though a top US Department of Justice ethics official advised him to step aside out of an “abundance of caution,” a senior official said on Thursday.
Whitaker’s past criticism of the Russia investigation has raised questions about whether he can oversee it fairly.
The ethics official this week said that a recusal was “a close call,” but suggested that Whitaker remove himself, even though he was not required to do so.
Whitaker decided not to take the advice.
Earlier on Thursday, a person familiar with the matter who was not authorized to discuss it publicly said that Whitaker did not have to recuse himself from overseeing the probe.
However, that was not the full picture.
Later, a senior Justice Department official provided a much more detailed account of the ethics consultation.
It showed that although Whitaker was not required to step aside from the investigation, the issue was not so clear-cut. That official spoke with reporters on condition of anonymity to discuss sensitive conversations.
Members of the US Congress have expressed concerns about Whitaker’s past criticism of US Special Counsel Robert Mueller’s investigation.
The probe is looking at Russian interference in the 2016 US presidential election and ties to US President Donald Trump’s campaign.
US Deputy Attorney General Rod Rosenstein oversaw the investigation until last month, when Trump ousted then-US attorney general Jeff Sessions, who had recused himself from the probe, and appointed Whitaker.
The senior official said that Rosenstein continues to have day-to-day oversight of the probe.
The questions about Whitaker’s decision not to recuse himself will add to the controversies surrounding his appointment.
Beyond the criticism about his comments on the probe, Whitaker has also faced scrutiny for his involvement with a firm that was accused of misleading consumers and is under investigation by the FBI, and over questions about whether he broke federal law because a campaign committee set up for his failed 2014 US Senate bid accepted US$8,800 in donations this year.
He is almost certain to face questions from Congress if he is called to testify before a permanent attorney general is confirmed.
Trump named William Barr — who was attorney general under former US president George H.W. Bush — to serve as the next attorney general, even though Barr has to be confirmed by the US Senate.
When Whitaker was appointed, he formed a group of four Justice Department officials — led by a veteran US attorney — to advise him on the transition and ethics process, the senior official said.
That small group of officials met repeatedly with the Justice Department’s career ethics officials.
While working as a legal commentator for CNN, Whitaker once opined about a scenario in which Trump could fire Sessions and then appoint an acting attorney general who could stifle the funding of Mueller’s probe.
His other public statements have included an op-ed in which he said that Mueller would be straying outside his mandate if he investigated Trump’s family finances.
In a radio interview, Whitaker said that there was no evidence of collusion between Russia and the Trump campaign during the 2016 election.
Whitaker was not required to solicit a recommendation from ethics officials and it was at Whitaker’s discretion whether he should recuse, the senior official said.
Ethics officials had also told Whitaker’s advisers that they had no precedent of another attorney general recusing themselves because of a perceived conflict.
Since taking office, Whitaker has not been briefed on specific developments of Mueller’s investigation and Rosenstein is to continue to maintain day-to-day oversight for the foreseeable future, the official added.
However, the official said Whitaker can be briefed as the investigation moves forward, although there is not a set timetable yet on when that might begin.
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