Jeff Sessions’s long expected departure arrived the day after Trump’s electoral thumping. The timing of the announcement deflected attention from Trump’s defeat and ensured fresh supervision for Robert Mueller before he could break his election hiatus with new public actions. Any possible doubt that Trump orchestrated Sessions’s removal to curtail Mueller’s investigation was removed by his appointment of Matthew Whitaker, an outspoken TV talking head opponent of the investigation, as acting attorney general. Trump’s action accelerates our slow-moving constitutional crisis.
Sessions has been perhaps Trump’s most effective cabinet member in implementing the hideously regressive Trump agenda: zealously combating immigration, curtailing civil rights enforcement, defending climate inaction, maximizing criminal sentences, and blocking any move toward criminal justice reform. Recusing himself – quite properly – from the Mueller investigation represented his only break with Trump and it proved fatal. Trump’s repeated public humiliation of his attorney general revealed that he viewed the attorney general as his personal protector.
Trump confirmed that view with his appointment of Whitaker. Pursuant to normal Justice Department rules of succession, Rod Rosenstein, the deputy attorney general, would have become acting attorney general. Instead, Trump chose Sessions’s chief of staff, who is not in the usual line of succession and has not been confirmed by the Senate. According to the Vacancies Reform Act, he can serve only 210 days unless Trump nominates a full-time successor, which will allow him to serve until the nominee is confirmed. Whitaker auditioned for his Justice Department job by appearing repeatedly on CNN to criticize Mueller’s probe, even explaining how an interim attorney general could starve the investigation and denouncing the expansion of the inquiry into Trump’s finances. White House Chief of Staff John Kelly reportedly referred to Whitaker as the eyes and ears of the White House in the Justice Department.
Whitaker plainly should recuse himself from the Mueller investigation. The appearance that he has prejudged the investigation is overwhelming, making it impossible for the public to have confidence in the legitimacy of his oversight. This is not a close call. He will, however, resist recusal, recognizing that his opposition to the special counsel investigation is the reason he was selected. Quite simply, therefore, Trump fired one prosecutor because he allowed the investigation against Trump to proceed and he replaced him with a prosecutor he expects will protect him from that investigation. That is every bit as corrupt as the firing of James Comey. It is a threat to the independence of the Justice Department and inimical to the rule of law.
So, what harm can Whitaker do? Pursuant to the special counsel regulations, the attorney general has authority to squelch any significant investigative or prosecutorial step in the investigation. That includes interviewing a witness, issuing a subpoena for documents or grand jury testimony, and seeking an indictment. He can block a subpoena of the president. He can also deny permission to follow new lines of investigation – such as into Trump’s finances — as they develop. Whitaker will also have authority over Mueller’s budget. The budget is supposed to be locked in for the fiscal year that started in October, but he can still order the reassignment of lawyers and other personnel who have been detailed to the special counsel from other Justice Department offices. Whitaker also has authority to block the release of any report Mueller produces.
Ultimately, Whitaker has the authority to fire Mueller and disband the special counsel’s office altogether. He can fire Mueller for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” Trump and his supporters have long argued disingenuously that Mueller has conflicts of interest, and the vague, catch-all good cause provision leaves room for an unscrupulous dismissal that would be difficult to contest.
Democrats in Congress have pushed legislation to protect Mueller by authorizing immediate judicial review of his firing. Given the supine posture of Senate Republicans and the 60-vote threshold for legislation in the Senate, that legislation – while well worth supporting – faces substantial headwinds.
So, what are the checks on Whitaker? First, the regulations require that the attorney general notify Congress if he rejects a proposed action by the special counsel. That requirement has become more meaningful with the election of a Democratic House majority. Unfortunately, Democrats won’t take over until January. And, while the regulations require notification, they don’t say when, leaving open the possibility that Congress might not learn in real time that the attorney general has stopped a proposed action.
Democrats, therefore, will have to be aggressive in their oversight. They will have the power to subpoena witnesses and documents. They should demand to know periodically whether any proposed action has been stopped or other requests denied. They will also have authority to subpoena any reports that Mueller issues.
Democratic oversight of the special counsel’s investigation will be crucial, but it will face difficulty. It is safe to assume that Trump and Whitaker will not cooperate. For example, if the House Judiciary Committee were to subpoena Mueller’s final report, Whitaker could refuse to produce it, asserting that it is protected by a form of executive privilege that limits production of law enforcement sensitive material. The committee could respond by holding the attorney general in contempt. Normally, it would refer a contempt holding to the U.S. Attorney for the District of Columbia for enforcement. But, because the Justice Department will already have concluded that the assertion of executive privilege is lawful, the U.S. attorney, who works for the Justice Department, will decline prosecution. The House, therefore, will have to authorize its counsel to file for civil contempt in U.S. District Court with an appeal to the D.C. Circuit. From there, the case can go to the Supreme Court where it will be decided by a conservative majority – including Trump appointees Brett Kavanaugh and Neil Gorsuch — that views executive power favorably. Even if the House prevails, it may receive the report late in Trump’s second term.
For many reasons, Jeff Sessions should never have been attorney general, but his recusal allowed Rod Rosenstein to protect the Mueller investigation and Mueller himself. A combination of the impending midterm elections and strongly worded hints of opposition to Mueller’s firing from Republican senators kept Trump in check. The midterms have passed and Trump has secured his hold on a shrinking and cowering Republican Party. When Trump threatened to fire Sessions last year, his former Senate colleagues rose to protect him. Their silence now speaks volumes and, doubtless, reassures Trump that impeachment is far off the table. Without that threat, and given that Mueller will not indict a sitting president, there is now insufficient consequence for Trump’s obstruction of justice. It will take a vigorous Democratic House and at least a few Republicans who still believe in the Constitution to pull us through. We all need to let Congress know how much we care.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.