The day after the midterm elections, Donald Trump fired Attorney General Jeff Sessions and appointed Trump loyalist Matthew Whitaker as acting attorney general. Whitaker, who has criticized the Mueller probe in the past, could fire Robert Mueller or defang his investigation.
Although Sessions was faithfully carrying out Trump’s draconian agenda on civil rights, immigration and policing, the president had Sessions in his sights since the latter recused himself from the Russia investigation in March 2017. Sessions’s recusal resulted from his failure to disclose at his confirmation hearing that he met with Russian officials when he was a Trump campaign adviser in 2016. The recusal paved the way for the appointment of Mueller as special counsel by Deputy Attorney General Rod Rosenstein in May 2017.
Champing at the bit to fire Sessions, Trump was convinced by his advisers to wait until after the midterms to avoid harming GOP candidates.
Sessions’s recusal infuriated Trump because it resulted in Rosenstein appointing Mueller as special counsel. Mueller has been methodically following his mandate to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.”
So far, Mueller’s probe has produced criminal charges against 32 individuals, including 26 Russians, and four close Trump aides have entered guilty pleas.
Whitaker Will Try to Defang Mueller Without Firing Him
An official from the Justice Department told The Washington Post that Whitaker would replace Rosenstein as the decision-making authority over Mueller’s investigation.
But Whitaker has a likely conflict of interest that could be examined by Justice Department ethics advisers who may pressure him to recuse himself. Whitaker has criticized the Mueller probe on television and in writing. In light of what happened to Sessions, Whitaker is unlikely to recuse himself. Indeed, Trump invariably fired Sessions and appointed Whitaker in order to limit the Mueller investigation.
In August 2017, Whitaker penned an op-ed for CNN, titled, “Mueller’s Investigation of Trump is Going Too Far.” Whitaker opined that investigating Trump’s or his family’s finances would go beyond the scope of the special counsel’s appointment and “would raise serious concerns” that the probe was “a mere witch hunt.”
Whitaker also wrote an op-ed in The Hill defending Trump for firing FBI Director James Comey, which led to the appointment of Mueller.
In a July 2017 appearance on CNN, Whitaker defended the June 2016 Trump Tower meeting in which Donald Trump Jr. met with a Russian operative to get “dirt” on Hillary Clinton. That meeting constitutes probable cause of violation of federal campaign laws. But Whitaker stated that as a political candidate, “You would always take that meeting.”
During the same CNN appearance, Whitaker said he “could see a scenario where Jeff Sessions is replaced with a recess appointment and that attorney general doesn’t fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt.”
Whitaker will have control over the Mueller probe. He could preclude avenues of investigation and prevent Mueller from issuing subpoenas or requesting indictments. Whitaker can make Mueller justify “any investigative or prosecutorial step,” and block any actions he feels are “inappropriate or unwarranted under established Departmental practices,” according to the Justice Department regulation. But if Whitaker curtails anything Mueller does, he must notify Congress.
Why Is Trump Afraid of Mueller?
There is abundant evidence that Trump engaged in obstruction of justice, and he is worried Mueller may come after him. Trump fired Comey because he wouldn’t drop the investigation of National Security Adviser Michael Flynn’s ties to Russia. And Trump drafted a memo to cover up the real purpose of the meeting between Donald Trump Jr. and the Russian operative.
In addition, Mueller’s team is apparently pursuing three avenues that directly impact Trump, Timothy O’Brien reported at Bloomberg:
First, it is seeking information as to whether Trump or his campaign worked with Russia to help Trump win the election. Second, it is looking into whether Trump or his advisers engaged in obstruction of justice to end the investigation. And third, it is investigating a possible quid pro quo that Trump and family members, particularly son-in-law Jared Kushner, may have sought in return for political favors, such as lifting sanctions on Russia or altering US policy on the Ukraine.
Moreover, Vanity Fair reported that White House officials are worried a perjury indictment of Donald Trump Jr. by Mueller is imminent. According to Politico, Trump Jr. “has told friends in recent weeks that he believes he could be indicted.”
Trump Tried to Have Mueller Fired
Trump tried to have Mueller fired in June 2017 and December 2017. In August 2018, Trump tweeted that Sessions “should stop this Rigged Witch Hunt right now, before it continues to stain our country any further.”
But the Justice Department regulation says a special counsel can “be disciplined or removed from office only by the personal action of the Attorney General,” and only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good reason.”
Rosenstein, who was the only person with the power to fire Mueller after Sessions recused himself, told the House Judiciary Committee in June 2018 that he was not aware of any “disqualifying” conflict of interest Mueller might have.
If Whitaker were to fire Mueller outright, that would reprise the “Saturday Night Massacre” during the Watergate scandal, when President Richard Nixon fired Attorney General Elliot Richardson who refused to fire special prosecutor Archibald Cox.
The GOP-controlled Congress has resisted passing legislation to protect Mueller. Senate Majority Leader Mitch McConnell (R-Kentucky), Sen. Orrin Hatch (R-Utah) and Senate Majority Whip John Cornyn (R-Texas) said it was unnecessary because they didn’t think Trump would fire Mueller.
Mueller was undoubtedly aware that Trump would target his investigation once the midterm elections were over, and he may have already taken steps to prevent the total derailment of his work. The special counsel might already have sealed grand jury indictments over which Whitaker would have no control. Mueller, who told Trump’s legal team a sitting president cannot be indicted, may have asked the grand jury to name Trump as an unindicted co-conspirator to violate federal election laws.
There is precedent for this. In 1974, a grand jury indicted seven of Nixon’s associates for the cover-up of the Watergate burglary. At the request of special prosecutor Leon Jaworski, the grand jury named Nixon an unindicted co-conspirator.
Mueller’s investigation has been shrouded in secrecy. He is expected to prepare a report but Whitaker may decide to keep it under wraps. The newly elected Democratic majority in the House of Representatives could subpoena the report, however, and make all or part of it public.
The Democratically Controlled House Aims to Protect Mueller
When the Democrats take control of the House of Representatives in January, they will very likely take actions that will give Trump cause for concern. Three members of the House Intelligence Committee told the Daily Beast they intend to subpoena documents and call witnesses that could reveal connections between Russian money and the Trump campaign.
They also intend to move to protect the Mueller investigation. “I think there’s a potential of a Wednesday Afternoon Massacre [the day Sessions was fired and Whitaker was appointed], and we’re not going to tolerate it,” Rep. Jackie Speier (D-California) said. And Rep. Mike Quigley (D-Illinois) stated he was “concerned about what [Trump and his allies] will do in the lame duck,” adding that protecting Mueller is “among the highest priorities.”
Rep. Eric Swalwell (D-California), also a member of the House Intelligence Committee, said on TODAY, “We will conduct the investigations that Republicans won’t.” Swalwell pledged, “We’ll fill in the gaps on the Russia investigations. The American people will see [Trump’s] tax returns, not because of voyeuristic interest, but because they should know if he is corrupt.”
Moreover, Sen. Mark Warner (D-Virginia), the ranking Democrat on the Senate Intelligence Committee, said in a statement, “No one is above the law and any effort to interfere with the Special Counsel’s investigation would be a gross abuse of power by the President. While the President may have the authority to replace the Attorney General, this must not be the first step in an attempt to impede, obstruct or end the Mueller investigation.”