Acting attorney general won’t get subpoena before testifying
WASHINGTON — After a heated back-and-forth, the chairman of the House Judiciary Committee, Jerrold Nadler, bowed to the wishes of the acting attorney general, Matthew Whitaker, that he not issue a subpoena while Whitaker testifies before the committee as scheduled Friday.
Democrats want to ask Whitaker about matters related to the Russia investigation led by special counsel Robert Mueller and whether President Trump replaced Attorney General Jeff Sessions with Whitaker in order to interfere with that inquiry. Some Democrats consider Whitaker’s appointment to be illegitimate.
Earlier Thursday, the Justice Department sent the committee a letter demanding a commitment in writing that any subpoena not be used during the hearing, a promise that the committee chairman, Nadler, D-N.Y., initially would not give.
But after negotiations that began early in the evening, the committee agreed verbally and in writing not to issue a subpoena on or before Feb. 8, according to a Justice Department spokeswoman, Kerri Kupec.
“In light of that commitment, acting Attorney General Whitaker looks forward to voluntarily appearing at tomorrow’s hearing and discussing the great work of the Department of Justice,” Kupec said.
The latest turn in the political drama started Thursday morning, when the committee voted to give its chairman, Nadler, the authority to subpoena Whitaker if he did not answer questions during the hearing or if he chose not to show up.
“I hope not to have to use the subpoena,” Nadler said Thursday. “Unfortunately, a series of troubling events over the last few months suggest that we should be prepared.”
While Whitaker had agreed to testify voluntarily, the potential that Nadler could subpoena him in the middle of the hearing was essentially a threat to initiate contempt-of-Congress proceedings if Whitaker refused to answer questions without a legal right to balk.
On Thursday afternoon, the Justice Department demanded that Nadler not use that power during the hearing.
“We seek a written assurance from your office that the committee will not issue a subpoena to the acting attorney general on or before Feb. 8,” the department wrote, “and that the committee will engage in good-faith negotiations with the department before issuing such a subpoena.”
The letter raised the possibility that Whitaker might not testify before William Barr is confirmed as the next attorney general. The Senate Judiciary Committee voted along party lines Thursday to send Barr’s nomination to the full Senate.
During the first two years of the Trump administration, when Democrats were in the minority, they bristled when officials like Sessions refused to answer their questions about communications with the president on the grounds that Trump might, in the future, want to invoke executive privilege over them — even though Trump never actually did so.
Executive privilege is a power that presidents have claimed under the Constitution to prevent Congress from gaining access to internal executive branch information, like confidential communications between the president and his advisers. But such information is not legally shielded from Congress by default; rather, the president is supposed to choose whether to invoke executive privilege in any particular instance — at the cost of accepting any political fire for keeping that information secret.