Jeff Flake Says Unconfirmed Matthew Whitaker Overseeing Mueller Probe Is ‘A Problem’

The Arizona senator is hopeful that a resolution to protect the Mueller investigation can be passed before the end of the year — one way or another.

Sen. Jeff Flake, left, and acting Attorney General Matthew Whitaker, right.
Chip Somodevilla / Getty Images

The Arizona senator is hopeful that a resolution to protect the Mueller investigation can be passed before the end of the year — one way or another.

U.S. Sen. Jeff Flake (R-Arizona) is not returning to the Senate following this session of Congress, having chosen not to run for re-election in his home state in this year’s midterms. Still, he wants to do one last thing before he leaves the esteemed chamber: protect the Russia investigation.

As reported by theHill, Flake expressed concerns with events this week that may put that investigation at risk. On Wednesday, Jeff Sessions was forced to resign from this position as Attorney General, and was replaced by his chief of staff, Matthew Whitaker.

The change in roles means that Deputy Attorney General Rod Rosenstein will no longer have a supervisory position overseeing the Russia investigation into meddling and interfering with U.S. elections in 2016, which is being led by special counsel Robert Mueller. That investigation is also reportedly looking at possible ties from the Kremlin to individuals within President Donald Trump’s campaign that year.

Normally, the U.S. Attorney General would be the one in charge of ensuring a special counsel was on task. Sessions had to recuse himself, however, because of meetings he himself had with Russian actors during the campaign, according to reporting from the New York Times.

Now that Sessions is out at the Department of Justice, the new Attorney General would presumably take over that role. But there’s a problem: Whitaker was never approved by the Senate to become AG.

His appointment has been deemed by some as bordering on unconstitutional — ordinarily, when a cabinet member steps aside from leading a department, a lower-level individual who has been approved by the Senate steps in to become an interim leader. That’s not the case with Whitaker.

It’s an issue for many, including some Republicans like Flake, who sees Whitaker as someone that threatens the integrity of an investigation he has criticized in the past.

“The way the president has basically designated someone who is not Senate confirmed to oversee the investigation, someone who’s already expressed his reservations about the investigation, that’s a problem.”

Some Democrats have said that they want Whitaker to recuse himself, if he’s to serve at all as AG. Flake stopped short of that, but emphasized his reservations about Whitaker’s role in overseeing the probe.

“I don’t know if recusal is the right thing, but to have somebody who is not Senate confirmed in a position to oversee, you know, an investigation of the president’s campaign, that just does not sit well here and I don’t think it’s consistent with practice and the Constitution, really,” Flake said.

He’s hopeful that another option can be explored: forcing a vote in the Senate that would require any termination of Mueller from his role as special counsel to be reviewed by a judge before he’s officially relieved of his duties. If that judge finds Mueller was fired for reasons other than his performance in the job, the judge could rule to reinstate Mueller.

Senate Majority Leader Mitch McConnell has said that no such legislation is needed, and does not plan to put a vote forward, previous reporting from Inquisitr noted. Yet Flake is hopeful that he can get the measure passed in other ways, including forcing it to be included in a spending measure at the end of the year.

Doing so would require every Democratic member of the legislative chamber to join Flake in inserting the idea into that bill. Another Republican senator would also have to agree to the idea. Sen. Susan Collins, a Republican from Maine, has said she wants a bill to protect Mueller to be considered, but she has not yet indicated if she’d be willing to attach the idea onto a spending measure.

Flake rejected the idea put forth by McConnell that Mueller doesn’t warrant protection from wrongful termination. “The leader said there’s no urgency because the special counsel is in no danger, people aren’t being fired. That’s changed, obviously,” Flake said.