A new lawsuit by Senate Democrats is challenging Pres. Trump’s appointment of Acting Attorney General Matt Whitaker on its constitutionality, but details from a 2004 disclosure form suggest that Whitaker might not have been qualified for the job that actually launched his Justice Department career in the first place.
Whitaker became U.S. attorney for Iowa’s Northern District in June 2004 at the recommendation of Sen. Chuck Grassley (R-IA), now the Judiciary Committee chair. Whitaker’s appointment came at a time when the Justice Department was secretly rating federal prosecutors on their loyalty to Pres. Bush.
As TYT previously reported, the Justice Department has refused to release documents that could address accusations at the time that Whitaker put partisan politics above his duties as a federal prosecutor. And the experience that got Whitaker his position as U.S. attorney for Iowa’s Southern District has not been closely examined.
As part of his Senate confirmation process, Whitaker submitted a disclosure form and questionnaire in which he gave relevant details about his background. Specifics supplied by Whitaker portray an attorney with no civil-rights experience and a minuscule number of criminal or federal cases under his belt.
Whitaker was nominated for the position in February 2004, less than nine years after receiving his law degree from Iowa Law School in 1995. In the intervening period, he worked as a lawyer at three different private firms and as corporate counsel for a grocery chain, SuperValu. In the years leading up to his nomination, he said, he also pursued multiple business deals, serving as president or executive for at least three companies unrelated to the legal field.
During his private practice as an attorney, his court appearances occurred in federal courts only about a quarter of the time at one law firm, now known as Finley, and about 15 percent at the other two firms, Whitaker estimated in his disclosure forms.
At Finley, where he worked for three years, only ten percent of the litigation in which he was involved concerned criminal matters, Whitaker said. At the other two firms, he had no experience in criminal cases. At SuperValu, he said, “the general nature of my practice was transactional and general commercial.”
The questionnaire asked Whitaker for details about “the ten most significant litigated matters which you personally handled,” some of which have been previously reported.
Of the ten litigated cases that Whitaker identified, there is one courtroom victory. According to Whitaker, seven of the cases were settled, he won one and lost two. The victory and two losses were among just five cases in which Whitaker identified himself as lead counsel.
The scope of Whitaker’s significant cases does not immediately suggest an ideal background for criminal prosecution at the federal level. For instance, in the case of John Harkness v. Samuel Burt, Whitaker represented a plaintiff making a “[p]ersonal injury claim resulting from driver of automobile driving over Mr. Harkness’ leg.”
Whitaker’s sole legal victory among his most significant cases came in the case of Jane Johnston v. Hy-Vee, Inc. and Ronnie and Mechelle Woodruff d/b/a Lenox Cleaners. Johnston sued multiple parties for breach of contract and negligence. Whitaker represented Hy-Vee, Inc., in this case “arising out of drycleaning performed by Lenox Cleaners that operated out of a Hy-Vee store.” Although a judgment was ordered against Lenox Cleaners, Whitaker won a ruling in Hy-Vee’s favor.
In June 2003, less than a year before he would become the top federal prosecutor in southern Iowa, Whitaker had one of his rare opportunities to appear in court thanks to the case of Beth Manning & Jody Sprock d/b/a Beth Manning, Jody Sprock Interiors & Associates v. Bertini Marble & Tile L.C.. Bertini was sued over a “home remodeling performed at residence of Thomas and Michelle Brown.” As lead trial attorney for Bertini Marble & Tile, Whitaker lost.
Whitaker’s other loss came in another breach of contract claim adjudicated that same month, in which he represented the defendant in the “subcontractor against general contractor” battle known as Gilcrest/Jewett Lumber v. Betts & Beer Construction Co., Inc..
The rest of his ten most significant litigated cases are of a similar nature:
- Continental Machinery Movers v. Midland International Tileworks, Inc. — Breach of contract case involving the relocation of industrial equipment (settled).
- Ramp v. City of Des Moines & Brooks Borg Skiles — Dispute over construction of a parking ramp at Des Moines International Airport (settled).
- Mass Transit Authority v. Design Alliance, et al. — Dispute over failure to procure a construction bond (settled).
- Swan Packing, et al v. Millard Refrigerated Services and Midwest Automatic Fire Sprinkler Company — Dispute over damages of $1.5 million in meatpacking inventory (settled).
- Kevin Askins d/b/a Community Builders v. J.P. Mann Construction Company & United States Fidelity and Guaranty Company — Dispute between contractor and subcontractor (settled).
- City of Eldora et al. v. Mercy Medical Center et al. — Dispute over closure of hospital/clinic (settled).
In all, Whitaker indicates only ten cases in his career that led to a verdict or judgment. Of those, he was sole counsel in five and associate counsel in two. Prior to overseeing 27 attorneys at the Justice Department, Whitaker indicated he had served as chief counsel, overseeing other attorneys, in only three court cases that led to a verdict or judgment.
Whitaker indicates that ten percent of the ten cases in question were jury trials. If accurate, this would mean that Whitaker only argued a single case before a jury in a trial that led to a verdict or judgment prior to his nomination to serve as Iowa’s Southern District U.S. attorney.
The ten litigated cases, however, were not his most significant legal activities. In a separate question, Whitaker is asked to describe “the most significant legal activities you have pursued,” including legal work that did not involve litigation.
Whitaker listed five commercial transactions as his most important legal work: Two acquisitions, two sales, and one merger. Four of the deals Whitaker worked on as corporate counsel for SuperValu.
At SuperValu, Whitaker writes, “I did not appear in court.” Most of his work there was “transactional and general commercial.” He was lead attorney on one out of the four SuperValu deals he lists as his most significant legal work, the company’s $1.5 billion acquisition of Richfood Holdings. He was co-counsel or associate counsel on the other cases; a sale, a merger, and two acquisitions.
The National Law Journal reported last week that Whitaker had a mixed reputation among Des Moines lawyers. “The criminal defense community knows who the good lawyers are,” one Iowa attorney said. “If [a complex case] goes to an outlier, everybody’s eyebrows get raised. He’s one of the outliers.”
Whitaker also indicates he never served as a judicial clerk, and lists no professional recognitions in the field of law, citing only his graduation with distinction from Iowa Law School and his position as senior associate editor on the school’s law review.
In one section, Whitaker is instructed to “list the titles…of books, articles, reports, or other published material,” as well as speeches by him. Although it’s not clear whether he was the author or editor, Whitaker lists only one item, an article from his school’s Law Review entitled, “Iowa’s Limited Liability Company Act: An Entrepreneur’s Dream.”
An online search turned up only one citation of the article Whitaker listed, in another school’s law review article about finding topics to write about. The citation of Whitaker’s work appeared in an appendix listing dozens of articles from “first-tier” and “other” law schools as examples of possible topics.
Jonathan Larsen is TYT's managing editor. You can find him on Twitter @JTLarsen.