Acting attorney general risks subpoena if he fails to show up
WASHINGTON — The chairman of the House Judiciary Committee signaled that Acting Attorney General Matthew Whitaker risks being subpoenaed if he fails to show up for a hearing scheduled on Friday.
Rep. Jerrold Nadler, D-N.Y., responded hours after Whitaker said he wouldn’t participate so long as Democrats were threatening to compel his appearance. Democrats want to ask him about his conversations with President Donald Trump and his oversight of special counsel Robert Mueller.
“If you appear before the committee tomorrow morning and if you are prepared to respond to questions from our members, then I assure you that there will be no need for the committee to issue a subpoena on or before February 8,” Nadler, a New York Democrat, said in a letter to Whitaker on Friday evening.
Striking a conciliatory note amid partisan tensions, Nadler said, “To the extent that you believe you are unable to fully respond to any specific question, we are prepared to handle your concerns on a case-bycase basis, both during and after tomorrow’s hearing.”
But the White House denounced Nadler’s moves.
“The fact Chairman Nadler would try to force the public disclosure of private conversations that he knows are protected by law proves he only wants to play politics,” White House press secretary Sarah Huckabee Sanders said in a statement. “The chairman should focus on helping the American people, rather than wasting time playing pointless political games.”
The Judiciary panel voted along party lines earlier in the day to authorize a subpoena if Whitaker refused to answer questions. Whitaker responded by saying he wouldn’t appear before the committee unless its new Democratic majority lifted the threat to subpoena him. It would be the first known subpoena since Democrats took control of the House.
“It is apparent that the committee’s true intention is not to discuss the great work of the Department of Justice, but to create a public spectacle,” he said in a statement. “Political theater is not the purpose of an oversight hearing, and I will not allow that to be the case.”
Normally, a subpoena like the one issued by Nadler would open a prolonged dispute over congressional and executive powers that could end up in the courts. But in this case the issue may become moot because the Senate is likely to confirm William Barr, Trump’s nominee for attorney general, next week.
In any event, the Congressional Research Service has found that “although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances.”
Last year, Democrats and Republicans on the House Intelligence Committee said they would seek to hold former Trump adviser Steve Bannon in contempt for his refusal to answer questions in closed-door testimony for its probe into Russian election interference. They never pursued that action.
In a letter to Nadler, Assistant Attorney General Stephen Boyd wrote that Whitaker is prepared to testify that “at no time did the White House ask for, or did the acting attorney general provide, any promises or commitments concerning the special counsel’s investigation.”
But Boyd said the Justice Department doesn’t believe that the committee may “legitimately expect the acting attorney general to discuss his communications with the president.” He stopped short of asserting executive privilege, the contention that a president needs to be able to rely on confidential counsel from his advisers.
The dispute over Whitaker comes as Democrats leading other House panels also stepped up investigations of Trump and those around him, despite the president’s warning in his State of the Union address on Tuesday that the nation’s “economic miracle” could be stopped by “ridiculous partisan investigations.” He’s also called it “presidential harassment.”