Acting Attorney General Matt Whitaker is exploring if he has to recuse himself from the Mueller probe

On Monday night, Justice Department spokeswoman Kerri Kupec said that "Acting Attorney General Matt Whitaker is fully committed to following all appropriate processes and procedures at the Department of Justice, including consulting with senior ethics officials on his oversight responsibilities and matters that may warrant recusal," notably Special Counsel Robert Mueller's investigation into Russian election meddling and President Trump's campaign. Trump forced out Attorney General Jeff Sessions last week, after spending 18 months criticizing him for recusing himself from the Mueller investigation.

Whitaker has been overseeing the Mueller investigation since he was sworn in last Wednesday, despite his past public criticism of the investigation, including hypothesizing how to shut it down, and his ties to Sam Clovis, a key witness in the Mueller investigation. Democrats have called on Whitaker to recuse himself, with the party's congressional leadership arguing Monday that "the official supervising the special counsel investigation must be — in both fact and appearance — independent and impartial," and "Whitaker’s statements indicate a clear bias against the investigation."

Whitaker, who was Sessions' chief of staff, also faces challenges to his legitimacy because he was not confirmed by the Senate, a constitutional imperative for a "principal officer" like the attorney general. The Justice Department's Office of Legal Counsel is expected to issue a legal opinion arguing that his appointment is legal, The Wall Street Journal reports. "The appointment could still face a legal challenge that, if successful, could invalidate actions Mr. Whitaker takes as acting attorney general." For more about how Whitaker's legitimacy can be challenged and on what grounds, read Harvard Law professor Laurence Tribe's op-ed at HuffPost.

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