WASHINGTON _ Acting Attorney General Matthew Whitaker will not to recuse himself from overseeing special counsel Robert S. Mueller III's investigation into Russian interference in the 2016 election despite advice from a senior attorney that he should do so, Justice Department officials said Thursday.
Whitaker sought advice from ethics officials shortly after being tapped to take over as the nation's top law enforcement officer. He did so because of critical comments he had made about the Mueller inquiry in interviews and writing done before he joined the government last fall as then-Attorney General Jeff Sessions' chief of staff.
Whitaker has not received any briefings on Mueller's probe while the ethics review was taking place, the Justice Department officials said. They declined to say when he may be briefed. The officials spoke to reporters under ground rules that do not allow them to be identified.
Whitaker's decision came as lawmakers received a memo written in June by the man President Donald Trump has nominated to be the next attorney general, William Barr. His memo sharply criticized one aspect of the special counsel probe.
The decision was a "close call," the senior ethics lawyer _ a career Justice Department employee _ told Whitaker's aides Tuesday. But the lawyer believed Whitaker should step aside "in an abundance of caution," a senior Justice Department official said.
Whitaker's advisers, however, recommended to him Wednesday that he not recuse himself because the decision was a close one, and they felt he should not step aside from a case over the appearance of a conflict.
Whitaker took his team's recommendation, the official said, and is sending a letter to congressional lawmakers to address the matter.
The probe by Mueller into Russia's meddling in the presidential campaign is being overseen by Deputy Attorney General Rod Rosenstein. The Justice Department officials said Rosenstein would continue to supervise the investigation on a "day-to-day basis" as he would any other high-profile investigation.
Whitaker's decision is sure to be met with criticism from Democrats, who have expressed concerns over his critical comments about the Mueller inquiry and whether he can fairly supervise it.
In 2017, Whitaker mused on radio and TV that cutting Mueller's budget or his authority could effectively choke or limit the probe. He called Mueller's appointment "fishy" and "ridiculous." And he argued in a CNN op-ed article that allowing Mueller to examine the finances of Trump's family raised "serious concerns that the special counsel's investigation was a mere witch hunt."
Whitaker was tapped to be acting attorney general on Nov. 7, shortly after Trump asked Sessions to resign. Whitaker then appointed a U.S. attorney to oversee a group of advisers running a war room of sorts to work through the ethics review process, Justice Department officials said.
Whitaker did not face any conflicts of interest that would have required a mandatory recusal _ such as having a financial stake in a company under investigation or having once defended a suspect in the case. But because there was the potential for an appearance of a conflict, under Justice Department rules he had to ask for ethics advice and then recuse if he believed that was required.
His team of advisers has met with ethics officials several times since Whitaker was tapped by Trump to run the department. In Tuesday's meeting, the senior ethics official told the group that if asked by Whitaker, he would recommend that the acting attorney general recuse himself, the senior Justice Department official said.
The ethics official said the department could find no other instance of an attorney general recusing himself due to an appearance of a conflict of interest, the senior official said.
The announcement of Whitaker's decision not to recuse, coupled with Barr's memo criticizing Mueller's probe, added to the fraught atmosphere surrounding the Justice Department.
Barr, a former attorney general in the George H.W. Bush administration, sent the unsolicited memo to Rosenstein in June 2018. The 19-page memo says that Trump should not be forced to submit to an interview about Russia's interference in the election.
Barr's memo focused intensely on Mueller's reported investigation into whether Trump obstructed justice when he fired FBI Director James Comey. Barr said that such an investigation would be "fatally misconceived" and could do "lasting damage" to the presidency."
An investigation into potential obstruction by a president would be appropriate if it focused on intentional acts that could sabotage a law enforcement official's efforts to gather facts, such as destroying evidence or inducing a witness to lie to investigators, he said.
But firing Comey could not be considered obstruction because the president had constitutional discretion to remove such an official, Barr wrote.
"If a DOJ investigation is going to take down a democratically elected president, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime _ not a debatable one," Barr wrote.
The Trump administration sent the letter to Congress on Wednesday.
