At the tail end of his six-hour date with the House Judiciary Committee on Friday, acting attorney general Matthew G. Whitaker said something that caused more than a few weary ears to perk up: He said he was “aware of documents relating to pardons of individuals.”
Here’s the exchange between him and freshman Rep. Veronica Escobar (D-Tex.):
ESCOBAR: Did you ever create, direct the creation of, see or become aware of the existence of any documents relating to pardons of any individual?
WHITAKER: I am aware of documents relating to pardons of individuals, yes.
Unfortunately for us, this was the last question Escobar was able to ask, thanks to the five-minute limit, and no other members picked up on this thread.
This has led to speculation about whether Whitaker might have spilled the beans about some pardons being in the works related to the Russia investigation.
But the answer in and of itself is difficult to pin down. And earlier in the hearing, Whitaker addressed the topic more specifically -- by saying he had “not been involved” in any pardon discussions -- including for Russia investigation figures.
Here’s his exchange with Rep. Eric Swalwell (D-Calif.):
SWALWELL: Have there been any discussions at the department about pardons for Paul Manafort, Roger Stone, Michael Flynn or Michael Cohen?
WHITAKER: Congressman, we have a very well worn system for ...
SWALWELL: That the president doesn't follow. But have there been discussions about pardons for those individuals that you're aware of? Yes or no.
WHITAKER: Congressman, as I’ve been acting attorney general, I have not been involved in any discussions of any pardon even -- including the ones you’re discussing.
We can parse both these answers. Does Whitaker saying he wasn’t “involved in any discussions” mean they didn’t exist? Not necessarily. Perhaps he was “aware” of them and simply hadn’t participated in them. That would make both of his answers consistent and allow for some big Russia pardon to have come to his attention at some point.
But there is another plausible explanation here. Whitaker has previously served in the Justice Department -- specifically as a U.S. attorney in Iowa -- and could have been aware of pardon applications then. Which is basically what a Justice Department source told me. The source said Whitaker “would have seen documents around pardons as U.S. Attorney, while the [Swalwell] Q&A pertains to specific individuals currently.”
It would also be unusual for Whitaker to be involved with pardons in the first place, as Matthew Miller noted. That process is generally run through the deputy attorney general (the DOJ’s No. 2) and not the attorney general. The Justice Department’s website states: “After all relevant information has been received, [the Office of the Pardon Attorney] prepares a proposed recommendation for disposition of the case that is submitted to the Deputy Attorney General, who makes the final determination of the Justice Department’s recommendation to the President. The Deputy Attorney General’s signed recommendation is then transmitted to the White House, and the President acts on each case when he believes it is appropriate to do so.”
Given that procedure, it would be doubly odd for Whitaker to be involved in high-profile pardons in the Russia investigation. And he says he was not involved in any potential pardons as acting attorney general.
We also need to remember that, as Swalwell noted, President Trump has generally not used the traditional pardon process of running them through DOJ. It’s not clear why Trump, if he were plotting Russia-related pardons, would decide to suddenly start running these ideas up the flagpole (especially given how sensitive this would be if it ever leaked).
In other words, to believe Whitaker spilled the beans on potential Russia-related pardons, we would need to believe that he botched an answer to a question he had already answered -- or that he was leaning heavily on the word “involved," at the risk of potential legal jeopardy for making false statements. And Trump and the White House would have had to have taken the unnecessary step of looping in the attorney general, which isn’t really their style.
No matter what you think of Whitaker, the less-nefarious explanations probably make the most sense.