Acting Attorney General Matthew G. Whitaker said he will not appear before Congress on Friday without assurances that he won’t be subpoenaed — giving Democrats a deadline of 6 p.m. Thursday to respond.
Whitaker’s move came shortly after the House Judiciary Committee voted along party lines to give its chairman the authority to subpoena Whitaker’s testimony, should he not appear or answer lawmakers’ questions.
Whitaker’s stunt comes after months of delay and refusal to testify voluntarily, a bit of chutzpah that did not go unremarked upon by Democrats ("the panel had sent Whitaker many letters and requests to settle points of his testimony in advance, to which he had chosen not to respond”). No doubt, when Whitaker shows up on Friday he’ll invoke executive privilege (improperly, since that is not a privilege that holds up against Congress), necessitating the committee then to issue a subpoena and attempt to compel his testimony.
The real issue here is Whitaker’s fear of appearing and being forced to answer questions under threat of congressional contempt, which could occur if he is under subpoena. (“Democrats worry that Whitaker, whose public comments before taking over the Justice Department suggested that he was sympathetic to Trump and critical of the Mueller inquiry, may seek to evade questions he is asked during the proceedings.”)
“This is outrageous,” said constitutional scholar Larry Tribe. “Whitaker seems to think he is entitled to dictate the terms on which he is invited to testify. He is not. It is anti-constitutional for a member of the Article II branch, not to mention an unconfirmed acting officer whose initial appointment was of dubious legality, to insist that he will not appear to give testimony properly sought by the Article I branch, acting through a duly constituted committee of the U.S. House of Representatives, unless that Article I committee first sacrifice one of its statutory and constitutional prerogatives.”
We don’t know why precisely Whitaker is panic-stricken over the prospect of testifying. He might be so unqualified and ignorant that he fears public humiliation. He might have engaged in improper collaboration with Trump in trying to slow down the investigation or ferret out information helpful to Trump or Trump cronies. We simply do not know.
What is obvious is that he is trying to run out the clock until William Barr, whose nomination for attorney general cleared the Senate Judiciary Committee on Thursday, is installed.
“There are obviously questions Matt Whitaker is terrified to answer, and so DOJ is grasping for excuses to avoid appearing,” said former Justice Department spokesman Matthew Miller. “I think they’ve wanted to push this appearance until after Barr is [installed] all along, and now they’re setting up a court fight that could delay it for months, when they must hope anything he says will be old news.” He added: “It is terrible behavior by the Justice Department and an ominous sign of how the Trump administration intends to treat legitimate Congressional oversight.”
In other words, Trump and Whitaker have corrupted an unknown number of lawyers, who took an oath to the Constitution and who operate under professional ethics rules, to thwart the legitimate interests of Congress and more important, the American people.
It is precisely this concern over transparency that prompted many Senate Democrats to oppose the nomination of Barr, who refuses to guarantee that the special counsel’s full report will be revealed.
Trying to bottle up the report increasingly seems like a political nightmare in the making as well as a horrible precedent for future presidents. According to a CNN poll released Thursday, “Nearly nine in 10 Americans say Robert Mueller’s investigators should produce a full, public report on their findings, a sentiment that crosses party lines. ... And nearly half of Americans think Donald Trump’s campaign colluded with the Russian government to help get Trump elected (48%), while 42% say there was no collusion.” In addition, the poll finds: “Most disapprove of the way Trump is handling the investigation (56% disapprove, 32% approve), while Mueller’s ratings tilt narrowly positive (44% approve, 41% disapprove, 15% have no opinion). And about six in 10 say they think the investigation is a serious matter that should be fully investigated, while 37% call it an effort to discredit Trump’s presidency.”
Whitaker’s antics only heighten suspicions that the president is frightened of Mueller, his findings and the ramifications of his report. Innocent men don’t behave in such a fashion. Maybe Whitaker — who can be called as a percipient witness even after leaving office — can explain the motives for the web of evasion.