Whitaker had said Thursday that he would not appear before the committee as scheduled unless committee Democrats gave him assurances he wouldn’t be subpoenaed.
Earlier Thursday evening, Nadler sent a letter to Whitaker that provided no such promise, saying only that “there will be no need for a subpoena” if Whitaker answers lawmakers’ questions. “To the extent that you believe you are unable to fully respond to any specific question, we are prepared to handle your concerns on a case-by-case basis, both during and after tomorrow’s hearing,” Nadler wrote.
The two sides continued discussions throughout the evening and eventually, according to Justice Department officials, Nadler agreed that no subpoena would be issued Thursday or Friday.
Justice Department spokeswoman Kerri Kupec said that Nadler “has made the commitment that we requested, and agreed that, if Mr. Whitaker voluntarily appears at tomorrow’s hearing, the committee will not issue a subpoena on or before February 8. In light of that commitment, acting attorney general Whitaker looks forward to voluntarily appearing at tomorrow’s hearing and discussing the great work of the Department of Justice.”
Tensions ran high during the day as the administration and congressional Democrats accused each other of acting in bad faith.
“The fact Chairman Nadler would try to force the public disclosure of private conversations that he knows are protected by law proves he only wants to play politics,” White House press secretary Sarah Sanders said. “The chairman should focus on helping the American people, rather than wasting time playing pointless political games.”
Whitaker’s demand for Democrats to set aside their subpoena threat 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.
The confrontation highlights efforts by Democrats to assert their newfound control of the House of Representatives as a check on the Trump administration’s power, and the administration’s determination to push back against congressional investigations decried by the president. However the Whitaker subpoena standoff ends, it may set the tone for months or years more of wrangling between the White House and congressional Democrats.
Democrats have vowed to press Whitaker about his conversations with Trump and his decision not to recuse himself from special counsel Robert S. Mueller III’s investigation of Russian interference in the election.
Whitaker had said in a statement that the committee has “deviated from historic practice and protocol and taken the unnecessary and premature step of authorizing a subpoena to me, the acting attorney general, even though I had agreed to voluntarily appear.” He called the move a breach of his agreement with the panel.
Whitaker’s position was relayed to the committee in a letter sent Thursday to the committee.
“Respectfully, this proposed approach reflects a striking departure from the constitutionally based understanding between our co-equal branches of government,” wrote Stephen Boyd, head of the Justice Department’s Office of Legislative Affairs.
Whitaker, the letter said, is willing to discuss with lawmakers his decision not to recuse himself from the Mueller investigation. “We do not believe, however, that the committee may legitimately expect the acting attorney general to discuss his communications with the president,” Boyd wrote.
Democrats on the committee showed no inclination to accommodate Whitaker’s demands, and some urged Nadler to respond with an immediate subpoena.
“Get him under subpoena, bring him to our hearing, and ask him questions and demand answers — and then take him to court if he does not answer those questions,” said Rep. Hank Johnson (D-Ga.).
“What he’s trying to do is play out the clock . . . and then maybe he thinks he’s off the hook of having to appear,” Johnson continued. “But I think he’ll be badly mistaken about that.”
Rep. Ted Deutch (D-Fla.) said he had heard Whitaker was “nervous” about his testimony. “That’s not a reason not to show,” Deutch said. “If he simply does what he’s committed to do, committed to publicly, which is to appear and answer questions, there won’t be a subpoena.”
The panel vote on the subpoena along partisan lines underscores the new political tensions around Mueller’s work now that Democrats control the House. Democrats worry that Whitaker, whose public comments before taking over the Justice Department suggested he was sympathetic to Trump and critical of the Mueller inquiry, may seek to evade questions he is asked during the hearing.
They pointed to a pattern of administration witnesses, such as former attorney general Jeff Sessions, who refused to answer certain queries by suggesting that the president “might” want to invoke executive privilege over certain parts of their testimony, to justify the concern.
“The committee can and should expect a direct answer to any question,” said Nadler, who opted to send Whitaker his questions in advance and require that he tell the panel about any plans to invoke executive privilege at least 48 hours before the hearing.
Republicans objected to the move, arguing that Whitaker had not given the panel a legitimate reason to be concerned — and that approving a preemptive subpoena would set a bad precedent for the panel.
“This subpoena is nothing short of political theater,” said Rep. Douglas A. Collins (Ga.), the panel’s ranking Republican. “I’m concerned about the chilling effect on other witnesses who would be willing to testify voluntarily, and when they see this happen, they’ll just hold out.”
Republicans had attempted to get the committee to expand the subpoena-in-reserve to give Nadler the authority to subpoena Deputy Attorney General Rod J. Rosenstein, whom GOP members of the panel have long wanted to question about reports he suggested recording the president and invoking constitutional procedures to remove him from office.
If the panel had questions about oversight of Mueller’s inquiry, Republicans also argued, it would be better to question Rosenstein, who had been monitoring it for far longer than Whitaker.
“We want to add Mr. Rosenstein to get at the heart of the matter of the questions,” said Rep. Andy Biggs (R-Ariz.), who presented the amendment to add Rosenstein’s name to the subpoena authorization. “He could probably answer those questions more thoroughly than anybody else.”
The panel voted against the proposal, also along party lines.
Whitaker’s hearing probably will be one of his final appearances as acting attorney general. The Senate Judiciary Committee voted along party lines Thursday to advance the nomination of William P. Barr to serve as attorney general, and the full Senate is expected to vote on confirmation next week.
Although several Democrats have opposed Barr’s nomination out of concern that he might limit Mueller’s investigation or keep the final report out of the hands of the public, he is expected to be confirmed, as he needs to secure only a simple majority of the GOP-led Senate for his nomination to be approved.