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Should acting Attorney General Whitaker recuse himself from Mueller’s investigation?

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By Danny Cevallos

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.



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Italy MEP offers Brexit OLIVE BRANCH and admits Rome TERRIFIED by no-deal

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ITALY eurocrat Paolo De Castro has given Theresa May a glimmer of hope her Withdrawal Agreement can be “improved”, as Italian business leaders admitted fears billions of pounds worth of trade between Rome and London could be at risk by a no-deal Brexit.

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Shutdown could further endanger whales

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By Associated Press

PORTLAND, Maine — Rescuers who respond to distressed whales and other marine animals say the federal government shutdown is making it more difficult to do their work.

A network of rescue groups in the U.S. works with the National Oceanic and Atmospheric Administration to respond to marine mammals such as whales and seals when the animals are in trouble, such as when they are stranded on land or entangled in fishing gear. But the federal shutdown, which entered its 33rd day Wednesday, includes a shuttering of the NOAA operations the rescuers rely upon.

NOAA plays a role in preventing accidental whale deaths by doing things like tracking the animals, operating a hotline for mariners who find distressed whales and providing permits that allow the rescue groups to respond to emergencies. Those functions are disrupted or ground to a halt by the shutdown, and that’s bad news if whales need help, said Tony LaCasse, a spokesman for the New England Aquarium in Boston, which has a rescue operation.

“If it was very prolonged, then it would become problematic to respond to animals that are in the water,” LaCasse said. “And to be able to have a better handle on what is really going on.”

The shutdown is coming at a particularly dangerous time for the endangered North Atlantic right whale, which numbers about 411, said Regina Asmutis-Silvia, a senior biologist with Whale and Dolphin Conservation of Plymouth, Massachusetts. The whales are under tight scrutiny right now because of recent years of high mortality and poor reproduction.

NOAA recently identified an aggregation of 100 of the whales south of Nantucket — nearly a quarter of the world’s population — but the survey work is now interrupted by the shutdown, Asmutis-Silvia said. Surveys of rare whales are important for biologists who study the animals and so rescuers can have an idea of where they are located, she said. No right whale mortalities have been recorded so far in 2019, but there have been at least 20 since April 2017.

“There’s a really significant impact on marine mammal conservation based on this shutdown,” Asmutis-Silvia said. “We have little to no ability to find them because of NOAA’s being furloughed.”

Many in the conservation community are anticipating potential changes to the federal government’s Atlantic Large Whale Take Reduction Plan, which is a tool to reduce incidental deaths of whales. But that process, too, is on hold because of the shutdown.

Calls from The Associated Press to NOAA spokespeople were not returned. Some spokespeople for the agency have voicemail set up to say they will return to work when the shutdown is over.

Outside of the federal government, work to protect whales is still going on. The developer of an offshore wind energy project off Massachusetts announced Wednesday it is partnering with environmental groups on a plan to try to protect the right whales.

And not all the news about the whales is gloomy. A Florida research team has located the third right whale calf of the season. None were spotted last season.

Scott Landry, director of marine mammal entanglement response for the Center for Coastal Studies in Provincetown, Massachusetts, said that a NOAA whale entanglement hotline is currently being forwarded to him, and that he’s managing to pick up the slack so far. Rescue groups anticipated the shutdown and are working together to make do until it’s over, he said.

In Virginia, one of the state’s first responders for whale rescues is the Virginia Aquarium & Marine Science Center in Virginia Beach. Mark Swingle, the aquarium’s director of research and conservation, said the center would not have “the usual assets we depend on to support the response” if it needs to assist an endangered whale.

That’s because NOAA staff and the Coast Guard would not be available, Swingle said.

“These circumstances require extremely specialized training and resources and NOAA is the lead organizer of large whale and other disentanglement efforts,” he said. “Live strandings pose their own set of challenges that NOAA helps navigate appropriately.”

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Brexit Article 50 news: Will Article 50 be extended?

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BREXIT Article 50 being triggered was the first action the UK took towards withdrawing from the European Union in 2017. Could article 50 be extended?

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