WASHINGTON — A few weeks before President Donald Trump appointed Matthew Whitaker acting attorney general in November after ousting Jeff Sessions, the Justice Department’s ethics office spotted a problem.
Whitaker had joined the DOJ in October 2017 as then–attorney general Sessions’ chief of staff. It wasn’t until October 2018, however, that the ethics office discovered that “due to administrative error,” no one had reviewed financial disclosure forms Whitaker had submitted nearly a year earlier, according to information the department filed last month in a court fight over access to records about Whitaker’s appointment.
The new court filing depicts a last-minute scramble to get Whitaker’s compliance with federal ethics rules in order as Trump prepared to tap him as the nation’s top law enforcement official. It adds to the timeline of a controversial appointment that raised as-yet-unresolved questions about Trump’s defiance of norms in choosing senior-level executive branch officials, and echoes broader concerns about ethics compliance across the administration.
Once the DOJ ethics office did look at Whitaker’s financial reports, it concluded they were inadequate, according to a declaration DOJ submitted from Cynthia Shaw, the head of the Justice Department's ethics office. The office asked him to “create complete reports that would correctly and completely present his assets, former clients, and other potential sources of conflicts of interest,” Shaw wrote.
The financial disclosure forms submitted by senior executive branch officials are used to check for potential conflicts of interest between their finances and their work. Shaw’s declaration didn’t offer details about the “administrative error” or say if the ethics office took steps to address it going forward. The filing also didn’t say if the department looked for, or found, other senior DOJ officials whose financial forms were never reviewed because of the same error.
Whitaker, who now works at a Kansas City, Missouri, law firm, and a Justice Department spokesperson did not respond to requests for comment.
Chief of staff to a Cabinet-level position is one of the most important non-Senate-confirmed positions in an agency, said Virginia Canter, chief ethics counsel for government watchdog group Citizens for Responsibility and Ethics in Washington. Canter, a former senior ethics counsel at the Treasury Department, said the chief of staff is usually involved in a “hands-on” way with whatever is coming through the top official’s office.
“They should have reviewed this in a more timely fashion. Not doing so leaves [Whitaker] open to not addressing potential conflicts of interest, and it raises concerns about whether they had the systems in place to ensure a timely review,” Canter said. “It’s highly unusual to have it take this long. … Sometimes these do fall through the cracks, but this just seems like a pretty serious omission.”
Whitaker’s official start date as Sessions’ chief of staff was Oct. 4, 2017, according to his financial reports. New government employees hired at Whitaker’s level are required to file a “New Entrant Report” that discloses their assets, liabilities, investments, salaries, and other financial ties within 30 days of starting their job. Whitaker received a 14-day extension, and his financial report was filed Nov. 18, 2017.
Whitaker also filed a separate annual financial disclosure report in May 2018. Under federal regulations, his reports should have been reviewed by the DOJ’s ethics office within 60 days of his filing and should have been publicly available 30 days after the department received them. Neither form received final certification from a DOJ ethics official until Nov. 20, 2018.
Scott Amey, general counsel of government watchdog group Project on Government Oversight, wrote in an email to BuzzFeed News that it was “essential” for agencies to review financial disclosure forms to make sure officials aren’t “serving both Uncle Sam and some other personal or third-party interest.”
"The failure to check Whitaker's forms highlights the systemic problem with the Administration getting people inside the doors first and only asking questions later, which could result in Whitaker — or others — working on matters that they shouldn't work on. It's too bad that ethics is taking a back seat,” Amey wrote.
According to Shaw’s declaration, the DOJ ethics office contacted Whitaker on Oct. 22 to say it needed more information “to create complete reports.” Whitaker responded and his reports were updated, but on Nov. 9 — two days into Whitaker’s tenure as acting attorney general — Shaw contacted his chief of staff “to pursue answers to questions that remained unresolved.”
Shaw said the back-and-forth over Whitaker’s forms lasted several weeks, something that was reflected in the final version of his forms that were released to the public Nov. 20. The data was revised five times that month, according to his forms.
Whitaker disclosed earning more than $1 million as executive director of the Foundation for Accountability and Civic Trust, a group involved in conservative causes that did not disclose its donors, according to New York Times reporting at the time. The forms also disclosed his work for World Patent Marketing, a company that was accused of fraud — allegations Whitaker was aware of, according to Reuters — and reached a settlement with the Federal Trade Commission in 2018.
The Justice Department previously acknowledged problems with the release of Whitaker’s forms. Watchdog groups and Democrats had complained about the fact that Whitaker’s financial forms weren’t released until two weeks after he became acting attorney general. In a December 2018 letter to Senate Democrats, Assistant Attorney General Lee Lofthus, who oversees the DOJ’s administrative division, blamed the delay in finalizing the review of Whitaker’s forms on “administrative error,” according to Bloomberg News.
The Justice Department filed Shaw’s declaration in court last month in pending litigation over whether the department should be required to release the earlier versions of Whitaker’s disclosure forms under the Freedom of Information Act. BuzzFeed News is suing for copies of those documents. The DOJ is opposing the request, arguing the uncertified versions are exempt from the federal public records law because they reflect internal agency deliberations and include personal financial information.
Shaw didn’t share what prompted her to look into Whitaker’s forms in October. The Washington Post reported on Oct. 10, 2018, that Trump “recently” had spoken with Whitaker about replacing Sessions.
Trump forced Sessions to resign Nov. 7, 2018, the day after the midterm elections. It was an expected move — Trump had complained privately and publicly for more than a year about Sessions’ decision to recuse himself from the investigation into Russian interference in the 2016 election. Normally, the number two official would step in as acting attorney general, but Trump skipped over then–deputy attorney general Rod Rosenstein, who had been overseeing the Russia probe, and announced on Twitter that he was appointing Whitaker.
Before joining the Justice Department as Sessions’ chief of staff in October 2017, Whitaker had been critical of the Russia probe — he publicly questioned the need for an independent prosecutor to investigate the 2016 election, and then specifically raised concerns about the scope of now–former special counsel Robert Mueller’s investigation.
Former Justice Department officials and legal scholars questioned not only Whitaker’s qualifications to serve as the nation’s chief law enforcement official, even on a temporary basis, but also the lawfulness of his appointment. Senate Democrats, the Maryland attorney general, and other groups took the issue to court, arguing that the appointment of a non-Senate-confirmed official violated the Constitution and circumvented the Senate’s role in the confirmation process for top executive branch officials.
No judge had ruled on the merits of those legal arguments by the time Bill Barr was confirmed as attorney general on Feb. 14, 2019; judges concluded that Barr’s confirmation made the fight over Whitaker moot. Whitaker served as acting attorney general for just over three months — during that time, he took over from Rosenstein as the top official overseeing what ended up being the final months of Mueller’s investigation, notwithstanding calls from Democrats that he recuse himself given his past criticism of the investigation.
Questions lingered about the timeline and validity of Whitaker’s appointment. Trump’s presidential memorandum appointing Whitaker was dated Nov. 8 — the day after Whitaker officially stepped into the role — and a DOJ correspondence office didn’t mark Trump’s appointment memo as received until 11:59 p.m. on Nov. 13, according to a document obtained by BuzzFeed News through the Freedom of Information Act earlier this year.