Some are calling for the newly-named Acting Attorney General Matthew Whitaker to recuse himself from special counsel Robert Mueller's investigation, just as Attorney General Jeff Sessions did before him.
The Ethics in Government Act of 1978 directs the attorney general to create rules requiring disqualification of Justice Department employees in cases of personal, financial or political conflict of interest, or the appearance thereof. This mandate has been accomplished through regulations, one of which Sessions cited in his own recusal upon: "Disqualification arising from personal or political relationship."
The regulation provides, among other things, that "no employee shall participate in a criminal investigation…if he has a personal or political relationship with (a)ny person or organization substantially involved in the conduct that is the subject of the investigation or prosecution." A "(p)olitical relationship means a close identification with an elected official, a candidate … a political party, or a campaign organization, arising from service as a principal adviser … or a principal official …"
A DOJ employee may not participate in a matter that could affect the financial interests of members of his or her household or where someone is involved with whom the employee is seeking employment or a business, contractual or other financial relationship.
Sessions was quick to point out in his opening statement during an appearance before the Senate that he recused himself "not because of any asserted wrongdoing on my part during the campaign," but because the DOJ regulation "required it."
In the case of Whitaker, parts of Section 45.2 could arguably apply. Critics might argue that Whitaker cannot oversee Mueller's investigation of President Donald Trump because of a prior political or personal relationship with Trump.
Reports that Whitaker has ingratiated himself with the White House through his television appearances and his position as Sessions' chief of staff could be cited as a political or personal relationship. A political relationship could be that "close identification" developed with the president in his capacity as Sessions' chief of staff.
Whitaker might be said to have a "personal relationship," which means a close and substantial connection that would be considered likely to induce partiality. There's a presumption of a "personal relationship" with one’s father, mother, brother, sister, child and spouse. But friendships can be included, and these are evaluated on an individual basis with consideration given to the official's subjective opinion.
The challenge with claiming that Whitaker has a "personal" or "political" relationship with Trump is that many people are appointed to positions because they have curried favor with an executive. The fact that Whitaker commented on television about the Mueller investigation might indicate bias, but it's hard to say if that rises to the level of a personal or political relationship, or an improper appearance of partiality.
In the modern cable era, it might have a chilling effect if potential Justice Department appointees were disqualified for an opinion expressed on television, an op-ed column or an academic journal article. Then again, if that public statement indicates a significant enough bias, recusal could be appropriate.
When federal courts have analyzed Section 45.2, they have mainly done so in the context of a criminal defendant seeking to disqualify a federal prosecutor, claiming, for example that the AUSA had it in for him because of some prior unpleasant interaction.
Disqualifying prosecutors implicates separation of powers issues, and is a drastic measure that courts should hesitate to impose unless disqualification is necessary. Not surprisingly, courts disqualify prosecutors only in limited circumstances.
Of course, federal prosecutors are hardly expected to be neutral in all things. By definition, a U.S. Attorney is an adversarial position, an advocate aligned against criminals, civil rights violators and the like. While the Supreme Court has indicated that judicial neutrality is closely guarded, prosecutors need not be as entirely neutral and detached.
When a defendant tries to knock out an assistant U.S. attorney prosecuting him, the defendant has to raise a credible allegation of a conflict of interest or the appearance of an improper motivation. Then, a court will carefully balance judicial integrity against the government's right to prosecute. Usually, the defendant loses.
Even if a court could review the application of the recusal regulations to Whitaker in this situation, it might conclude that this personal or political relationship does not warrant disqualification. Then again, normally the alleged bias is against the criminal defendant — not against the investigation itself.
Whether Whitaker should recuse himself from involvement in the Mueller investigation ultimately appears to be a judgment call — one that Trump likely vetted in advance of selecting him.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.
