Acting attorney general Matthew G. Whitaker’s one (and possibly only) turn getting grilled by Democrats is finished. The House Judiciary Committee peppered Whitaker with questions for about six hours Friday, a week before William P. Barr is expected to be confirmed as President Trump’s next attorney general.
The hearing didn’t hold any major news. But as the first clash between newly empowered House Democrats and a Trump Cabinet official, it may be a sign of things to come.
Here’s the main story, from The Post’s Devlin Barrett and Matt Zapotosky. Below is a little more on what we learned.
1. Whitaker was in over his head
There was some thought that Whitaker would have a tough time, given his lack of experience in such high-profile positions, his lack of a Senate confirmation and the fact that Democrats were girding for a fight in their first oversight hearing with a Trump Cabinet official. He went through extensive preparation, as the Daily Beast’s Betsy Woodruff reported.
Even so, it was a rough performance.
Whitaker might not have revealed anything disastrous, but he was an unsteady witness. At the start of the hearing, he decided to tell the committee’s chairman, Rep. Jerrold Nadler (D-N.Y.), that Nadler had exceeded his allotted five minutes for questions, earning gasps and laughter from those assembled. He repeatedly told members that this was an oversight hearing and not a confirmation hearing, even though they were generally asking him about the investigation of special counsel Robert S. Mueller III (over which he has oversight). He repeatedly and obviously stalled by avoiding easy yes-or-no questions or not answering at all. He often referred to how little fun he was having during the hearing and how little time he had left in his job, given Barr has a confirmation vote next week.
None of it inspired much confidence from the nation’s active leading law enforcement official. There are ways to deftly maneuver these things without giving away too much (as Barr showed us in his confirmation hearing). But Whitaker seemed to be holding on for dear life, intent to run out the clock — both during questioning and on his time as acting attorney general.
His and Barr’s contrasting performances could not have been more different.
2. Won’t deny Mueller is on a ‘witch hunt’
Rep. Steve Cohen (D-Tenn.) at one point asked Whitaker, who repeatedly criticized the Mueller investigation as a private citizen and as a CNN pundit, whether the probe was a “witch hunt,” as President Trump has stated.
Whitaker refused to answer, saying: “It would be inappropriate for me to discuss an ongoing investigation.”
This is, of course, a question others involved have been willing to address, including Deputy Attorney General Rod J. Rosenstein (who has long overseen the Mueller investigation) and FBI Director Christopher A. Wray. Even Barr, who has criticized the Mueller probe as a private citizen, said in his confirmation hearing that it was not a witch hunt. (Barr is not involved in the investigation, however.)
3. No subpoena showdown yet — but . . .
The day before the hearing Friday was spent in a back-and-forth over whether Whitaker would even show up. Nadler had the committee vote Thursday to authorize him to subpoena Whitaker, just in case. And Whitaker threatened not to testify if Nadler didn’t ease up.
The possibility of a subpoena fight loomed large for Whitaker, but it also had the potential to set the precedent for the next two years. Were there to be a legal fight over the extent to which Whitaker could claim executive privilege, it could impact how much Trump Cabinet officials could stonewall in what is sure to be a bunch of testy oversight hearings.
But that’s a fight that will have to wait. Nadler promised before the hearing that he would not subpoena Whitaker, and he neglected to go after Whitaker when the acting attorney general repeatedly affirmed he would not discuss his conversations with Trump.
Nadler did say, though, that Whitaker would be called back for a closed deposition where he will actually have to declare executive privilege. Nadler added that “we will use a subpoena if we have to.”
After the hearing, Whitaker declined to say whether he would participate in such a deposition.
So stay tuned.
4. A sitting president cannot be indicted
It wasn’t a huge surprise, but Whitaker did enter something significant into the record: He said the Justice Department believes sitting presidents cannot be indicted.
It’s safe to assume this is still the policy, given it was decided during the Nixon administration and later affirmed in the Clinton administration. The Washington Post reported that Mueller’s team has made it clear to witnesses that this policy remains in place.
But Whitaker erased any doubt.
“That is still the policy of the Department of Justice,” he said.
5. The most inexplicable moment
Whitaker had no shortage of evasive answers Friday, but perhaps the most inexplicable one came toward the end.
Whitaker was asked how he found out that he had been tapped to serve as acting attorney general, which was publicly announced in tandem with Jeff Sessions’s exit the day after the 2018 election.
Whitaker said he received a phone call from Trump in which he was told he got the job — but added that he could not recall whether he first found out from that phone call or one of the president’s tweets.
Here’s the exchange with Rep. Madeleine Dean (D-Pa.):
WHITAKER: I can’t remember which preceded which, but I believe I received a phone call from the president of the United States asking me to be the acting attorney general
DEAN: A moment ago you said you learned by tweet. Did I misunderstand you?
WHITAKER: Yeah, I think you did.
DEAN: So you learned first by a phone call from the president?
WHITAKER: I believe so, but they were very close in time. And so as I sit here, I can’t remember which preceded which.
This was the moment Whitaker was elevated to the top law enforcement position in the United States. And he says he cannot remember exactly how he first learned he got that job? That certainly seems like something that would be etched into memory — especially three months in.
Democrats asked Whitaker repeatedly how he came to get the job, a move that was effectively Trump replacing an attorney general he had come to despise with an acting attorney general who actively lauded him. This doesn’t exactly put those questions to rest.