During a hearing before the House Judiciary Committee regarding the special counsel investigation last week, Acting U.S. Attorney General Matthew Whitaker was surprisingly asked a question about his involvement in January’s new opinion on the Wire Act issued by the Justice Department’s Office of Legal Counsel (OLC). Whitaker denied any involvement.
The opinion, as has been covered here previously, said that the Wire Act makes all interstate online gambling illegal, reversing the opinion from the OLC under the Obama Administration in late 2011, which said that the Wire Act applies only to sports betting.
A recent report from The Wall Street Journal said that Sheldon Adelson was behind the new OLC opinion, as one of his lobbyists submitted a memo to the Justice Department in 2017, arguing that the 2011 opinion was wrong. The Justice Department forwarded it to the OLC, which produced the opinion in November 2018. The opinion was published last month.
Not a Friendly Conversation
During the Congressional hearing, Rep. Jamie Raskin (D – Md.) entered into a contentious line of questioning with Whitaker to try to drill down into some potential financial corruption in the Trump administration. After Whitaker interrupted early questions and attempted to hijack the session, voices were raised and Committee Chair Rep. Jerry Nadler stepped in to settle things down. Following that excitement, Rep. Raskin got to the Wire Act:
I’ve got a theory that I want to float with you and it goes to something very strange that’s been happening at the Department of Justice…recently.
Casino billionaire and magnate Sheldon Adelson hates online gambling, for obvious reasons. It’s competition for him; he wants people in the casinos, not online. And he spent more than a million dollars lobbying Congress to override the 2000 [author’s note: 2011] opinion by the Office of Legal Counsel – DoJ – saying that the Wire Act plainly prohibits only sports gambling online, not gambling in the states, which is why Florida, Pennsylvania, New Jersey, have built important business for themselves online. But Congress wouldn’t change the law according to the demands of Mr. Adelson, so rather than change the law, he decided to try to get the Department of Justice to change the interpretation of the law and he threw millions into a campaign to remake the DoJ and get the Office of Legal Counsel to perform a complete reversal and say that the Wire Act bans the kind of lotteries that states run online, even though its language plainly prohibits only sports betting.
And when Donald Trump won and Mr. Sessions became AG and you became Chief of Staff, DoJ leadership ordered a reevaluation of this legal question and what do you know? The Office of Legal Counsel find some subtle and invisible points of law that apparently escaped the Department of Justice in 2011 and reversed the plain reading of the interpretation which talked specifically about sports betting.
Now, were you involved in that decision?
Whitaker responded that then-Attorney General Jeff Sessions had recused himself from online gambling issues and thus Whitaker was also recused and was not involved in the Justice Department’s decision. He also said, after Raskin asked, that he never spoke with Adelson or his lobbyists about the decision. He did admit that he knows Charles Cooper, Adelson lobbyist and the former personal attorney for Sessions, but never spoke with him about the matter.
Whether or not any of that is true is unknown, but if Whitaker lied during his Congressional testimony, then he will be some hot water if the truth comes out.