Viewpoints

An Extremist Attorney General

Acting Attorney General Matthew Whitaker.
Acting Attorney General Matthew Whitaker. AP

Matthew Whitaker is one the most frightening people to occupy the role of attorney general in American history.

He displayed the only qualification President Donald Trump needed when he criticized Robert Mueller’s investigation. But his far-right views — particularly on constitutional law — are scary.

While running for the U.S. Senate in Iowa four years ago (he finished fourth), he was asked what Supreme Court cases were wrongly decided.

“There are so many,” he said. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Opinion

Whitaker thus rejects Marbury v. Madison, which in 1803 established the power of courts to review the constitutionality of statutes and executive actions. He rejects “all” of the New Deal cases. These included decisions upholding Social Security, the federal minimum wage, and federal agencies such as the Securities and Exchange Commission.

He said states should be able to nullify federal law, contrary to the Supreme Court’s 1819 decision in McCulloch v. Maryland.

“We need to remember that the states set up the federal government and not vice versa ... Do I believe in nullification? I think our founding fathers believed in nullification. There’s no doubt about that,” he said.

Chief Justice John Marshall explained in McCulloch that people, not the states, created the national government, and that the Constitution is the supreme law of the land.

erwin chemerinsky.JPG
Erwin Chemerinsky

Whitaker’s position has a truly vile pedigree. South Carolina U.S. Senator John Calhoun argued in the 1800s that states could negate federal actions limiting slavery. In the 1950s and 1960s, segregationists revived Calhoun’s theory to justify disobeying federal desegregation orders. It was a terrible theory then and it is frightening to have an attorney general who embraces it.

If this is not enough, Whitaker has taken the position that only Christians should be federal judges. During his Senate campaign, Whitaker was asked about his criteria for evaluating federal judges. He said, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice — which I think is very important.” The moderator asked, “Levitical or New Testament?” “New Testament,” Whitaker replied. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”

The Constitution specifically prohibits a religious test for public office, but now we have an acting attorney general who believes in one.

Whitaker seems to have gotten himself the job with a CNN op-ed in which he said the Mueller investigation had gone too far. He also said Sessions’ replacement as attorney general could effectively end the special counsel investigation by “reduc[ing] [Mueller’s] budget so low that his investigation grinds to almost a halt.”

There are calls for Whitaker to recuse himself from overseeing the Mueller investigation, but Whitaker has given no indication he will. There are bipartisan bills pending in Congress to protect Mueller, but it is unclear whether they will pass.

Thirty-two people have been indicted or plead guilty as a result of the Mueller investigation. Paul Manafort, Trump’s campaign manager, was convicted in a jury trial. Mueller’s investigation is not a “hoax” or a “witch hunt,” as President Trump repeatedly has asserted. It is about crimes that go to the very heart of the integrity of our electoral system. The investigation must be allowed to continue unimpeded.

Matthew Whitaker is absolutely the wrong person to oversee the investigation or to be acting attorney general of the United States.

Erwin Chemerinsky is the dean and Jesse H. Choper Distinguished Professor of Law at University of California, Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
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