In­terim AG could cut bud­get, au­thor­ity of spe­cial coun­sel

The Island Packet - - The Long Read - BY ROS­ALIND S. HEL­DER­MAN, MATT ZAPOTOSKY AND CAROL D. LEON­NIG

The fu­ture of the spe­cial coun­sel in­ves­ti­ga­tion into Rus­sian in­ter­fer­ence in the 2016 cam­paign was thrown into un­cer­tainty Wed­nes­day af­ter Pres­i­dent Don­ald Trump ousted At­tor­ney Gen­eral Jeff Ses­sions, giv­ing a po­lit­i­cal loy­al­ist over­sight of the probe.

Trump named as act­ing at­tor­ney gen­eral Matthew Whi­taker, Ses­sions’ chief of staff, who as a le­gal com­men­ta­tor last year wrote that Spe­cial Coun­sel Robert Mueller ap­peared to be tak­ing his in­ves­ti­ga­tion too far. A Jus­tice Depart­ment of­fi­cial said Wed­nes­day that Whi­taker would as­sume fi­nal de­ci­sion­mak­ing au­thor­ity over the spe­cial coun­sel probe in­stead of Deputy At­tor­ney Gen­eral Rod Rosen­stein.

Since last year, Rosen­stein has over­seen the in­ves­ti­ga­tion be­cause Ses­sions, a key Trump sur­ro­gate in 2016, re­cused him­self from deal­ing with mat­ters in­volv­ing the cam­paign. It wasn’t im­me­di­ately clear what role, if any, Rosen­stein may play in the probe go­ing for­ward.

As act­ing at­tor­ney gen­eral, Whi­taker could sharply cur­tail Mueller’s au­thor­ity, cut his bud­get or or­der him to cease lines of in­quiry. Within hours of his ap­point­ment, there were mount­ing calls by con­gres­sional Democrats and govern­ment watch­dog groups for Whi­taker to re­cuse him­self, cit­ing crit­i­cal com­ments he made about Mueller’s in­ves­ti­ga­tion.

Fu­ri­ous Democrats, em­bold­ened by win­ning con­trol of the House in Tues­day’s elec­tions, also promised to in­ves­ti­gate Ses­sions’ forced res­ig­na­tion and sug­gested Trump’s ac­tions could amount to ob­struc­tion of jus­tice if he in­tended to dis­rupt the crim­i­nal probe.

“There is no mis­tak­ing what this means, and what is at stake: this is a con­sti­tu­tion­ally per­ilous mo­ment for our coun­try and for the Pres­i­dent,” Rep. Jer­rold Nadler, D-N.Y., said in a state­ment. He is set to take over in Jan­uary as chair­man of the House Ju­di­ciary Com­mit­tee, the panel that would over­see any im­peach­ment pro­ceed­ings.

Sen. Richard Blu­men­thal of Con­necti­cut called Wed­nes­day’s events “a break-the-glass mo­ment” and said he would be in­tro­duc­ing leg­is­la­tion to pro­tect Mueller’s work.

“Any at­tempt to limit his re­sources or the scope of his in­ves­ti­ga­tion is un­ac­cept­able,” he said. “The world, and his­tory, are watch­ing.”

A spokesman for Mueller de­clined to com­ment.

Trump’s de­ci­sion to push Ses­sions out con­flicted with com­ments he of­fered dur­ing a news con­fer­ence on Wed­nes­day when he in­sisted he had a right to end the in­ves­ti­ga­tion but said that he would pre­fer to “let it go on.”

“I could fire ev­ery­body right now, but I don’t want to stop it be­cause po­lit­i­cally I don’t like stop­ping it,” Trump said. “It’s a dis­grace. It should never have been started, be­cause there is no crime.”

Jus­tice Depart­ment of­fi­cials said Whi­taker will fol­low the reg­u­lar process for re­view­ing pos­si­ble eth­i­cal con­flicts, a process that in­volves ethics lawyers re­view­ing an of­fi­cial’s past work to see whether there are fi­nan­cial or per­sonal con­flicts that pre­clude them from be­ing in­volved in par­tic­u­lar cases.

Whi­taker, a for­mer U.S. at­tor­ney in Iowa, once mused as a le­gal com­men­ta­tor about how a Ses­sions re­place­ment might re­duce Mueller’s bud­get “so low that his in­ves­ti­ga­tion grinds to al­most a halt.” In an Au­gust 2017 tweet, he wrote that an opin­ion piece call­ing the spe­cial coun­sel in­ves­ti­ga­tion a “Mueller lynch mob” was “worth a read.”

Whi­taker also wrote in a Septem­ber 2017 col­umn that Mueller had “come up to a red line in the Rus­sia 2016 elec­tion-med­dling in­ves­ti­ga­tion that he is dan­ger­ously close to cross­ing” af­ter CNN re­ported that the spe­cial coun­sel could be look­ing into Trump and his as­so­ciates’ fi­nan­cial ties to Rus­sia.

He also has ties to Sam Clo­vis, who served as Trump’s na­tional cam­paign chair­man and has been in­ter­viewed as a wit­ness by Mueller’s in­ves­ti­ga­tors about his in­ter­ac­tions with for­eign pol­icy ad­viser Ge­orge Pa­padopou­los. Whi­taker chaired Clo­vis’ cam­paign for Iowa state trea­surer in 2014.

“We’re cur­rently friends,” Clo­vis said of Whi­taker in an in­ter­view with The Wash­ing­ton Post on Wed­nes­day. “I texted him con­grat­u­la­tions to­day.”

Whi­taker has not been con­firmed by the Se­nate and, by law, can serve for only 210 days be­fore he must be re­placed by some­one who has been con­firmed. That pe­riod could be ex­tended if Trump nom­i­nates a re­place­ment who is not im­me­di­ately con­firmed.

If Whi­taker takes over di­rect su­per­vi­sion of the Rus­sia in­ves­ti­ga­tion from Rosen­stein, he would as­sume bud­get au­thor­ity for Mueller’s work, giv­ing him the abil­ity to sharply re­duce Mueller’s staff and re­sources. His ap­proval would also be re­quired be­fore Mueller could take ma­jor in­ves­tiga­tive steps, in­clud­ing ask­ing a grand jury for ad­di­tional in­dict­ments.

Any re­port that Mueller is­sues de­scrib­ing his over­all find­ings would be sub­mit­ted to Whi­taker, who could de­cide it con­tained priv­i­leged ma­te­rial that should not be made pub­lic.

“Dis­cre­tion is such a part of what pros­e­cu­tors do,” said for­mer U.S. At­tor­ney Bar­bara McQuade. “He can’t ob­struct jus­tice, but he would have the abil­ity to make dis­cre­tionary de­ci­sions that could in many ways in­flu­ence the out­come of the in­ves­ti­ga­tion.”

Still, Whi­taker faces some lim­i­ta­tions. Jus­tice Depart­ment reg­u­la­tions would al­low him to fire Mueller, but only for mis­con­duct, con­flict of in­ter­est or other “good cause.”

The reg­u­la­tions would al­low him to re­ject re­quests by Mueller to take ma­jor steps in the in­ves­ti­ga­tion. Should he do so, how­ever, he would be re­quired to pro­vide the chair­men and rank­ing mem­bers of the House and Se­nate Ju­di­ciary Com­mit­tee a “de­scrip­tion and ex­pla­na­tion of in­stances” in which he over­ruled the spe­cial coun­sel.

Whi­taker’s ap­point­ment comes at a par­tic­u­larly crit­i­cal mo­ment, just as Mueller was ex­pected to end what has been a quiet phase of his in­ves­ti­ga­tion. In the run-up to Elec­tion Day, there were no in­dict­ments or pub­lic pro­nounce­ments by the spe­cial coun­sel’s of­fice, in keep­ing with Jus­tice Depart­ment guide­lines that pros­e­cu­tors should avoid tak­ing steps that could be per­ceived as in­tend­ing to in­flu­ence the out­come of the vote.

With the midterm elec­tions now over, Mueller faces key de­ci­sion points in his 18-mon­thold in­ves­ti­ga­tion into Rus­sian in­ter­fer­ence in the 2016 cam­paign – a probe that has led to charges against 32 peo­ple, in­clud­ing 26 Rus­sians. Four aides to Trump have pleaded guilty to var­i­ous charges, most re­cently his for­mer cam­paign chair­man Paul Manafort in Septem­ber.

ERIC THAYER Bloomberg

Spe­cial coun­sel Robert Mueller’s in­ves­ti­ga­tion into Rus­sian in­ter­fer­ence in the 2016 cam­paign was thrown into un­cer­tainty Wed­nes­day af­ter Pres­i­dent Don­ald Trump ousted At­tor­ney Gen­eral Jeff Ses­sions.

Matt Whi­taker

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