Former FBI director James Comey said Monday that, although acting attorney general Matthew Whitaker "may not be the sharpest knife in our drawer," he seems to understand the boundaries of the law in his position as the temporary head of the Department of Justice.
Questions of the legality of his appointment have weighed Whitaker down since he was named to the post after former Attorney General Jeff Sessions was forced out of the Justice Department by President Donald Trump. Whitaker's appointment came just one day after the midterm elections, in which Democrats seized control of the House of Representatives and Republicans expanded their slim majority in the Senate, which will ease the path for Trump to confirm a successor.
Since his appointment, Democrats and conservative legal scholars — including George Conway, the husband of presidential adviser Kellyanne Conway — have argued that Trump may have circumvented the Constitution in naming Whitaker to the post. Others have expressed concern that Trump's decision to place Whitaker in the interim role instead of deputy attorney general Rod Rosenstein may be a sign that the president is attempting to assume control of special counsel Robert Mueller's investigation.
Comey, in an interview with Boston public radio station WGBH, predicted Whitaker understands that he cannot interfere in Mueller's probe into allegations of collusion between Trump's 2016 presidential campaign and Russia, which he now oversees as the nation's top law enforcement official.
"He may not be the sharpest knife in our drawer, but he can see his future and knows that if he acted in an extralegal way, he would go down in history for the wrong reasons," Comey said. "I'm sure he doesn't want that."
Others have argued that it is illegal and unconstitutional for Whitaker to serve as acting attorney general, because he was not confirmed by the Senate. Trump responded to the criticism by arguing that Whitaker was "confirmed at the highest level" in 2004 when he was a federal prosecutor in Iowa and by questioning why special counsel Mueller was not also confirmed by Congress' upper chamber. Mueller, however, reports to Senate-confirmed appointees; he has been reporting to Rosenstein, who was confirmed by the upper chamber of Congress.
Trump has denied taking Whitaker's pulse on the Mueller investigation, but he did not have to do so. Throughout his time as Sessions' chief of staff, Whitaker has railed against it, penning an op-ed titled "Mueller's investigation of Trump is going too far." Democrats in the House and Senate have already called on Whitaker to recuse himself from the probe — something Sessions had done, but which Trump viewed as betrayal. Whitaker is a Trump loyalist — and the president has made it clear that he favors loyalty over nearly all else.
Comey, for his part, is at the center of the Mueller investigation and another Republican-led probe into 2016 presidential candidate Hillary Clinton's use of a private email server during her tenure as secretary of state. On Thanksgiving, Comey revealed that House Republicans delivered him a subpoena to privately testify before Congress next month about his handling of Clinton's email probe.
"Happy Thanksgiving. Got a subpoena from House Republicans," Comey tweeted last Thursday. "I'm still happy to sit in the light and answer all questions. But I will resist a 'closed door' thing because I've seen enough of their selective leaking and distortion. Let's have a hearing and invite everyone to see."
Comey told WGBH that he "would never just ignore a subpoena," although he tweeted on Thursday that he would prefer a hearing that's open to the public, expressing concern that a private one could lead to "selective leaking and distortion."
Comey reiterated his call from for a public hearing while speaking with WGBH. "I worry – from the conduct we've seen – that it's more about trying to create some false narrative that the FBI was on Team Clinton and against Team Trump," he said. "The best antidote to that kind of distortion is to have sunshine – ask me questions and let all of America watch."