The day after his party lost control of the House of Representatives, President Trump tried to change the discussion by firing Attorney General Jeff Sessions and naming his chief of staff, Matthew Whitaker, as interim attorney general.
While Sessions technically tendered his resignation, he made clear in a letter to Trump that he was doing so at the president’s request.
Trump has been on a year-long campaign to oust Sessions after he recused himself from Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election, including criticizing Sessions’ performance and insisting that he should show Trump loyalty — often publicly on Twitter.
Many critics have raised questions about whether, by naming Whitaker as Sessions’ temporary replacement, Trump is attempting to derail Mueller’s investigation, which Whitaker has previously called a witch-hunt. Democrats fear that, with Whitaker now handling Mueller’s investigation, the administration will attempt to bury any of the special counsel’s findings before Democrats take control of the House in January.
It may even spark a constitutional crisis if Trump fires Deputy Attorney General Rod Rosenstein or Mueller. Whitaker’s appointment is abnormal, given that Rosenstein would normally assume the office in the wake of Sessions’ resignation, and may even be unconstitutional under the Appointments Clause of the U.S. Constitution, which requires those that report directly to the president, like attorney general or secretary of state, to be confirmed by the U.S. Senate.
Glen Ackerman, the managing partner of the Washington-area regional law firm Ackerman Brown PLLC, says that Whitaker’s appointment is clearly unconstitutional and, as a result, anyting he does or tries to do as acting Attorney General is invalid.
“Mr. Whitaker lacks the requisite experience to be the chief law enforcement officer of the United States government,” Ackerman said in an emailed statement. He also expressed concerns over Whitaker’s tenure with World Patent Marketing, a company that was charged with fraud by the Federal Trade Commission.
“In May 2018, the United States District Court for the Southern District of Florida ordered World Patent Marketing to cease operations and pay a fine in excess of $25 million,” Ackerman said in a statement. “Court documents reflect that Mr. Whitaker was charged with addressing consumer complaints and frequently relied on his role as a former federal prosecutor to dissuade consumers from seeking a legal remedy. It is unethical for an attorney to threaten consumers from seeking a legal remedy.”
Constitutional and ethical issues aside, Whitaker — a two-time failed candidate for statewide office in Iowa and a Bush-appointed U.S. Attorney for the Southern District of Iowa — also has a troubling history of anti-LGBTQ stances. That leads many advocates to believe he will continue Sessions’ push for policies or interpretations of law that severely restrict LGBTQ people’s freedoms.
In short, Trump — “friend” to the LGBTQ community — may have swapped one anti-LGBTQ zealot for another.
Among Whitaker’s anti-LGBTQ moves include his work as a volunteer attorney for the right-wing, anti-LGBTQ legal organization First Liberty Institute, which supports religious exemptions that could allow for discrimination against LGBTQ people.
In an interview with the organization intended to tout his work on its behalf, Whitaker said: “I have seen how an expanding government and a culture dominated by non-Christian worldviews can encroach and offend on the religious liberties of Bible-believing people.”
As part of his work for First Liberty Institute, Whitaker defended Bob Eschliman, the former editor-in-chief of Iowa’s Newton Daily News, after he was fired over a post on his private blog criticizing LGBTQ activists for producing the Queen James Bible, a revision of the King James Bible that amended verses speaking out against homosexuality.
On the blog, Eschliman wrote that “the LGBTQXYZ crowd and the Gaystapo” are trying to reword the Bible “to make their sinful nature ‘right with God.'” Eschliman objected to his firing, arguing that his employer discriminated against him because of his Christian religious beliefs opposing homosexuality. The newspaper’s parent media company eventually agreed to settle the case out of court.
“No one should be fired for simply expressing his religious beliefs,” Whitaker said at the time. “In America, it is against the law to fire an employee for expressing a religious belief in public. This kind of religious intolerance by an employer has no place in today’s welcoming workforce.”
Outside of First Liberty Institute, in both his legal career and his political bids for office — most notably for the U.S. Senate seat from Iowa — Whitaker has repeatedly gone on record opposing LGBTQ rights.
In 2011, Whitaker appeared at the Conservative Principles PAC Conference, where he praised leaders from the anti-LGBTQ Family Research Council and the National Organization for Marriage as “a great group of culture warriors.”
During his 2014 bid for the Senate, Whitaker said that he considers the marriage a “non-negotiable” issue. More explicitly, he said that marriage is between one man and one woman, and that then-President Barack Obama was doing “significant damage” by supporting marriage rights for same-sex couples, adding: “There will be an unbelievable, long-term negative impact he’s leaving.”
Whitaker is also on record expressing support for a constitutional amendment to ban same-sex marriage during his 2014 campaign, according to the Sioux City Journal.
In addition, Whitaker opposed efforts to overturn the military’s “Don’t Ask, Don’t Tell” policy, decrying it as a form of social experimentation by saying: “I don’t want to see our military treated as a petrie [sic] dish.” He also expressed concerns over reports that military chaplains were being disciplined for refusing to endorse homosexuality or perform same-sex marriages.
Most concerning, Whitaker believes that federal judges should be asked if they are “people of faith” who have “a biblical view of justice.” He also said that, were he elected to the U.S. Senate, he would vote against judges that hold a “secular worldview.”
During his time as U.S. Attorney for the Southern District of Iowa, Whitaker was criticized by Democrats for what they saw as a politically motivated investigation into whether openly gay Democratic Iowa State Senator Matt McCoy was guilty of attempted extortion by allegedly threatening to use his influence as a senator to force a business partner to pay him $2,000.
Some even questioned at the time if Whitaker was intent on prosecuting McCoy because of anti-gay bias. McCoy was eventually found not guilty by a jury.
Unsurprisingly, LGBTQ groups are slamming Whitaker’s appointment to acting Attorney General.
Sarah Kate Ellis, the president and CEO of GLAAD, tweeted: “The new acting Attorney General Matthew Whitaker becomes the latest in a long line of known anti-LGBTQ activists who President Trump and Vice President Pence place in positions of power.”
The new acting Attorney General Matthew Whitaker becomes the latest in a long line of known anti-LGBTQ activists who President Trump and Vice President Pence place in positions of power.
— Sarah Kate Ellis (@sarahkateellis) November 7, 2018
David Stacy, the director of governmental affairs at the Human Rights Campaign, said in a statement that Whitaker’s appointment “signals that the anti-LGBTQ policies of Donald Trump, Mike Pence and Jeff Sessions will continue unchecked and unabated.”
He continued: “Whitaker has made clear he is a committed ally to extreme right-wing activists who oppose marriage equality, would block military service of qualified LGBTQ people, and would define sex in an attempt to erase all legal protections for LGBTQ Americans. With his history as a hardcore political operative and his views on the Mueller investigation and executive power, installing him as acting Attorney General threatens the rule of law and moves our country one step closer to a constitutional crisis.”
Shannon Minter, the legal director of the National Center for Lesbian Rights, says Whitaker “poses a grave threat to the rule of law and civil rights for everyone but the wealthy and privileged.” Minter calls Whitaker’s appointment “appalling,” warning that if he remains in office, attacks against LGBTQ legal protections are likely to escalate.
Already, on his first day in his new position as head of the Department of Justice, Whitaker issued a new interim rule that immigrants who illegally enter the country will no longer be able to claim asylum. While this action has primarily focused on the ongoing debate over immigration, NCLR Policy Counsel Tyrone Hanley notes that it could have detrimental effects on LGBTQ immigrants who flee their home countries to avoid persecution.
“President Trump’s plan would not only unlawfully limit asylum but would rewrite the character of our nation. For generations, America has been a refuge for those fleeing persecution in their home countries,” Hanley said in a statement.
“For many, asylum is a life and death matter. NCLR has worked with hundreds of LGBTQ asylum seekers who faced devastating physical and sexual violence in their home countries at the hands of the people and systems that should have protected them,” he added. “Trump’s plan to refuse asylum seekers based on where they enter the U.S. is not only cruel but will be a death sentence for many in our community.”
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