House Panel Votes to Subpoena Whitaker If He Balks at Questions

(Bloomberg) -- The House Judiciary Committee voted to authorize a subpoena of Attorney General Matt Whitaker if he refuses to discuss his conversations with President Donald Trump and his oversight of Special Counsel Robert Mueller’s Russia investigation in testimony before the committee on Friday.

Over Republican objections, the panel’s Democratic majority took the first step Thursday toward what would be the first known subpoena since their party took control of the House. The vote sets up a potential showdown between the committee and the Justice Department -- and possibly the White House.

“I hope and expect that the subpoena will not be necessary,” Judiciary Chairman Jerrold Nadler said, but he cited “troubling events” including previous efforts by the Justice Department to delay Whitaker’s appearance.

The move came as 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.”

House Panel Votes to Subpoena Whitaker If He Balks at Questions

The Justice Department views an advance authorization of a subpoena as unprecedented and unnecessary, according to a U.S. official who asked not to be identified speaking about internal matters. Whitaker is willing to testify voluntarily in an open session on Friday and has been preparing for weeks, including practicing questions and answers within the department, the official said.

But that’s no guarantee he will answer some key questions that Nadler has warned he’ll ask -- including about any conversations he’s had with Trump concerning Mueller’s Russia investigation and other probes into the president and his associates.

Nadler also has said he wants Whitaker to explain the circumstances under which he declined to recuse himself from being in charge of Mueller’s investigation in light of his public criticism of the inquiry before he joined the Justice Department.

Representative Doug Collins of Georgia, the committee’s top Republican, said the vote to authorize a subpoena was nothing more than “political theater” intended “for the sole purpose of embarrassing the witness.” He said Democrats want to set the stage for asking Whitaker about confidential information that no attorney general would answer.

“This is ridiculous -- the guy is coming!” Republican Representative Jim Jordan of Ohio said. Nadler responded that the real issue is “whether he will answer our questions.”

Justice Department leaders were planning to closely watch how the committee’s Thursday meeting, according to the U.S. official. Then, the department plans to send Nadler a letter addressing the issue of asserting executive privilege over his discussions with the president, the official said. Executive privilege is the contention that presidents need the assurance that they can have confidential discussions with those around them -

Trump named Whitaker acting attorney general in November after ousting Attorney General Jeff Sessions, who infuriated the president by recusing himself from overseeing the inquiry into Russia interference in the 2016 presidential campaign, whether anyone close to Trump colluded in the meddling and whether the president sought to obstruct justice.

Committee Republicans stuck with a theme they pursued when they controlled the panel: alleged anti-Trump bias in the Justice Department. They argued that Deputy Attorney General Rod Rosenstein is the official who should be subpoenaed to testify, and they pushed unsuccessfully for an amendment to require that.

Led by Jordan and Representative Andy Biggs of Arizona, they said they want to quiz Rosenstein about a report that in 2017 he talked with colleagues about wearing a wire to record a meeting with Trump and that he brought up the possibility of recruiting cabinet members to invoke the 25th Amendment to remove Trump from office as unfit. Rosenstein has disputed the report.

Executive Privilege

Nadler notified Whitaker in a letter last month about questions he’d pursue to give the Justice Department time to consult with the White House about whether any of the subject matter falls under executive privilege.

Nadler may be trying to prevent Whitaker from using a tactic deployed by other Trump administration officials who have refused to answer questions from lawmakers on the grounds that the White House might later assert executive privilege over the matters being discussed.

House Panel Votes to Subpoena Whitaker If He Balks at Questions

“Short of a direct and appropriate invocation of executive privilege, I will expect you to answer these questions fully and to the best of your knowledge,“ Nadler told Whitaker in the letter. “Similarly, I would view with considerable skepticism any effort to decline to answer on the basis that the inquiry is related to an ongoing criminal investigation.”

The Justice Department announced in December that Whitaker decided not to recuse himself from being in charge of the Mueller investigation, even though a top department ethics official said a formal review would probably result in recommending a recusal.

Executive privilege has been successfully asserted by officials from administrations of both parties. Officials also have frequently declined to discuss private conversations with a president even if they don’t assert the privilege. That gives Whitaker wiggle room, according to current and former U.S. officials.

Contempt of Congress

Whitaker, however, would risk provoking a confrontation with House Democrats that could result in him being held in contempt of Congress. The last attorney general to be held in contempt was Eric Holder during the Obama administration.

“Executive privilege is not an absolute privilege,” said Bruce Green, a former federal prosecutor who is now a professor at Fordham University School of Law in New York. “Nobody likes executive privilege battles. When you have them, historically they almost always get resolved through the executive branch and Congress.”

Whitaker could also refuse to answer detailed questions about Mueller’s investigation and grand jury proceedings, Green said.

Even if Nadler does issue a subpoena, it doesn’t necessarily mean that Whitaker will answer all of the panel’s questions. A fight over holding him in contempt of Congress could go on for months -- and by then Whitaker probably won’t be the acting attorney general.

Barr’s Nomination

Trump’s nomination of William Barr as attorney general is scheduled for a vote on Thursday in the Senate Judiciary Committee.

“It would be surprising to me if there’s anything of interest that Whitaker is asked where he feels compelled to take executive privilege and where the House feels that it’s worth going to war over,” Green said.

Other topics that Whitaker could be asked about on Friday include the Justice Department’s handling of voting rights, immigration matters, the Affordable Care Act, gun violence, foreign influence on the U.S. government and the Violence Against Women Act, according to Nadler.

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