WASHINGTON, D.C., November 8, 2018 – In the latest edition of Yeomans Work, AFJ Senior Justice Fellow Bill Yeomans writes that in firing Attorney General Jeff Sessions and installing Matthew Whitaker as acting attorney general, President Trump has taken out another insurance policy against the Mueller probe he so clearly fears.
Notes Yeomans: “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…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.”
According to Yeomans, Whitaker’s power to disrupt the investigation could be significant. “The attorney general has authority to squelch any significant investigative or prosecutorial step in the investigation,” Yeomans says. “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 one check on these powers? The oversight power of Congress, where Democrats now have a majority in the House. Congress can subpoena witnesses and documents, and should demand to know whether any proposed action has been stopped or other requests denied by the Justice Department. But lawmakers will have to be vigilant about exercising these powers, or Trump’s new protector at DOJ may quickly run roughshod over the Russia probe.