A Justice Department news conference — to announce criminal charges related to Chinese telecommunications conglomerate Huawei — has left a lot of lawyers scratching their heads.
Although Monday’s briefing was wholly unrelated to special counsel Robert S. Mueller III’s investigation, acting attorney general Matthew G. Whitaker took the opportunity to report that he had been “fully briefed” on the probe into Russian election interference.
“I look forward to Director Mueller delivering the final report, and I really am not going to talk about an open and ongoing investigation otherwise,” he said.
But then he did the opposite.
Whitaker continued to discuss it, albeit with a litany of unclear commentary.
“You know, I am comfortable that the decisions that were made are going to be reviewed, you know, either through the various means we have. But right now, you know, the investigation is, I think, close to being completed,” he said, adding that he hopes to get the report as soon as possible. (Note that Whitaker said “he thinks” the investigation is close to being completed, not that he was informed of its progress or expected timing.)
During a panel with Wolf Blitzer, CNN chief legal analyst Jeffrey Toobin summed up the collective thoughts of many politicians, attorneys and commentators: “What is he even talking about?"
“I have seen actual deer in actual headlights who express themselves more clearly than the attorney general of the United States,” said Toobin, a former federal prosecutor. “I have no idea what he’s talking about.”
To many, most unnerving was the notion that there is a review process that Whitaker might participate in after the investigation concludes.
Former solicitor general Neal Katyal called it “unconstitutional” and “unwise,” and predicted that such a review would “ultimately undo” Whitaker.
“It is absolutely unforgivable that Whitaker is in any position to know anything about the Mueller investigation, let alone claim to be ‘reviewing’ it. He has just about as much business doing that as a fox does in a henhouse,” Katyal tweeted.
When special counsels conclude grand jury investigations, Justice Department regulations require that they write a confidential report detailing their decision to indict or decline to indict the subjects and submit it to the attorney general.
The attorney general (or acting attorney general) will play a significant role in whether Mueller’s findings are made public, according to attorney Jonathan Meyer, a partner at Sheppard Mullin and former Justice Department senior official.
The attorney general must then notify the chairs and ranking members of the House and Senate Judiciary committees that the special counsel investigation has ended. Attorneys general can forward the final report to Congress but are not required to. They are also authorized to release the document to the general public if they determine it’s in the public interest.
Whitaker’s Monday comments struck a chord amid congressional concerns over whether attorney general nominee William P. Barr, if confirmed, would permit Mueller to complete the investigation or make its results public.
As The Washington Post’s Aaron Blake previously reported, during Barr’s January confirmation hearing, when asked about Mueller and Deputy Attorney General Rod J. Rosenstein, he replied, “If I’m confirmed, I’m going to go in and see what’s being contemplated and what they’ve agreed to and what their interpretation, what game plan they have in mind.”
As Blake wrote: “Perhaps Barr was just being exceedingly careful about not violating Justice Department rules, but his comments should be a warning sign not to expect anything amounting to a full ‘Mueller report.’ He, as the No. 1 official at the Justice Department, would have the discretion in a way nobody else does — which seems to be exactly what the man who appointed him has been craving.”
On Tuesday, one day after Sens. Richard J. Blumenthal (D-Conn.) and Charles E. Grassley (R-Iowa) introduced a bill to ensure the Muller report would be released directly to Congress and the public, the Senate Judiciary Committee delayed the vote to confirm Barr for a week; the committee cited the same concerns.
For the time being, Whitaker, an outspoken critic of the Russia probe who has decried calls to recuse himself as his predecessor, Jeff Sessions, did, is the acting attorney general.
“The problem is that we should be able to take public statements made by the attorney general of the United States at face value when he talks to the country,” said Joyce Vance, former U.S. attorney for the Northern District of Alabama.
Vance continued: “But we’ve got an attorney general who shouldn’t be involved in a case talking about it publicly and muddying the waters. It just makes an already difficult situation for the country that much worse.”
Karoun Demirjian and Aaron Blake contributed to this report.