Matthew Whitaker and the ‘Ginsburg Precedent’

The Trump administration’s newly-designated Acting Attorney General Matthew Whitaker has been met with disapproval in some quarters because of his pre-appointment statements criticizing aspects of the ongoing investigation by Special Counsel Robert Mueller. Consequently, many have called for his recusal from overseeing that probe. In a new post (found here) I examine those demands, and I look at them through the lens of the precedent set by Justice Ruth Bader Ginsburg. Specifically, Ginsburg continues to sit in judgement of cases in which Trump is a named party – despite her record of harsh, personal criticism of him.

Does the ‘Ginsburg Precedent’ matter? Here’s part of my take from the new post

In my view, we can’t—and shouldn’t—have separate rules based on ideological persuasion. If we assume that a sitting justice of the Supreme Court can put aside her personal enmity and judge a case impartially, then shouldn’t that same benefit of the doubt be applied to others, particularly where the questioned statements occurred prior to appointment?

May I also suggest that it’s quite possible for centrist (and other) members of “the public” to object to many of Trump’s actions—and to even have been initially supportive of the Mueller probe—but nevertheless now have growing concerns about the long-term implications of some of the tactics, techniques and procedures that Mueller has brought to bear? Is that really unreasonable? The CNN exit polls seem to suggest a lot of voters may possibly be feeling that way.

That’s a discussion for another time, but allow me to say that closely scrutinizing and questioning the activities of an extraordinarily formidable special prosecutor who has been extremely secretive about his activities is something we ought to demand of those public officials we depend upon for oversight.

It’s sometimes better for a democracy to have a skeptical mindset—even a rather antagonistic one—guarding the guardians. For these reasons, count me less alarmed than many other commentators by Whitaker’s comments.

Interestingly, Politico reported yesterday that “Robert Mueller’s top attorney said Monday that the special counsel’s investigative powers remain fully intact despite the recent change atop the Justice Department that gives Mueller’s team a new supervisor.”

Anyway, I hope you take a look at the full post which, again, is found here.

As we like to say at Lawfire®, check the facts, assess the arguments, and decide for yourself!

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