Whitaker can put obstacles in way of Mueller probe
INDICTMENTS COULD BE NIXED
Last year Matthew Whitaker, America’s new acting attorney general, laid out how he would stymie the Robert Mueller investigation.
A legal commentator before he came into the Justice Department, Whitaker once opined about a situation in which Donald Trump could fire Jeff Sessions and then appoint an acting attorney general who could stifle the funding of Mueller’s probe.
“So I could see a scenario where Jeff Sessions is replaced with a recess appointment and that attorney general doesn’t fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt,” Whitaker said during an interview with CNN in July 2017.
Asked if that would be to dwindle the special counsel’s resources, Whitaker responded, “Right.”
In an op-ed for CNN, Whitaker wrote: “Mueller has come up to a red line in the Russia 2016 election meddling investigation that he is dangerously close to crossing.”
It is unclear how close the investigation into Russian interference in the 2016 election is to being completed, much less the arm of that probe run by Mueller which is looking at any overlap with Trump’s campaign. There are signs it is nearing completion — but that could mean we are on the brink of substantial revelations or indictments. For example, in recent weeks, Trump’s son Donald Trump Jr. has reportedly told friends he expects to face an indictment. (Experts who spoke with The Washington Post speculated this would explain why Mueller has not yet interviewed Trump Jr.)
In other words, there may still be good reason for Trump to want to curtail Mueller’s work. With Sessions gone, that became much easier in two ways.
The first is installing a new attorney general would mean that control of the Mueller probe shifts away from Deputy Attorney General Rod Rosenstein, who appointed Mueller under the authority of leading the probe following Sessions’s recusal. Appointing a new attorney general is not trivial, since that person would need Senate confirmation to start work. Except that, under the terms of the Vacancies Reform Act of 1998, Trump does not need to have a new attorney general go through that process. Because Sessions technically resigned (at Trump’s request), there is no question Trump could use the Act to simply move any other administration official who’s already been confirmed by the Senate into Sessions’s former position.
Whitaker has not been confirmed by the Senate but, by law, can serve for 210 days before he must be replaced by someone who has been confirmed.
But now, as the ultimate supervisor of the investigation, Whitaker could sharply curtail Mueller’s authority.
So what could a new Justice Department head hostile to the investigation do? Earlier this year, Louis Seidman, Carmack Waterhouse professor of constitutional law at Georgetown University, outlined the ways in which Mueller’s wings could be clipped.
The main leverage that person gains:
“First and foremost, whoever is the Department of Justice staffer overseeing the probe is granted the power to ‘request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.’ In other words, if Mueller wants to bring forward a new indictment, the person in charge at DOJ could nix it.
“They could also go further.
“Depending on how aggressive this person wanted to be, they could dismiss the criminal cases, they could get rid of the grand jury,” Seidman said. “In the end, if Trump is determined, the people he appoints could shut (the probe) down.”
If Mueller wants to indict Trump Jr., he has to ask the Justice Department official overseeing the probe. NBC reports Rosenstein has already agreed to transfer his oversight to Whitaker, meaning Whitaker is now the one who would answer Mueller’s question.
If Whitaker is true to what he wrote before joining the government, he will simply say “no” — and such an indictment would come to a halt.
Some Democrats immediately called for Whitaker to recuse himself from supervision of the investigation, including Sen. Minority Leader Charles Schumer.
Democrat Sen. Mark Warner, the ranking member of the Senate Intelligence Committee, which has also been investigating the 2016 election, said in a statement that any effort to interfere in Mueller’s investigation would be a “gross abuse of power by the President.”
“While the President may have the authority to replace the Attorney General, this must not be the first step in an attempt to impede, obstruct or end the Mueller investigation,” Warner said.
THE PEOPLE HE APPOINTS COULD SHUT (THE PROBE) DOWN.