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Whitaker hearing is first big test of Trump’s ‘executive privilege’ strategy

Acting attorney general will be first White House official to be questioned by new Congress

Acting Attorney General Matthew Whitaker is expected to get a number of questions from the House Judiciary Committee about any conversations he had with White House officials, including the president, about his role overseeing the special counsel investigation. (Chip Somodevilla/Getty Images)
Acting Attorney General Matthew Whitaker is expected to get a number of questions from the House Judiciary Committee about any conversations he had with White House officials, including the president, about his role overseeing the special counsel investigation. (Chip Somodevilla/Getty Images)

Acting Attorney General Matthew Whitaker’s testimony at a House Judiciary Committee hearing on Friday will offer a first glimpse into how the Trump administration plans to comply with — or stall — House Democrats’ oversight inquiries.

The hearing, slated for 9:30 a.m., will put to the test the White House counsel’s strategy for invoking executive privilege on certain conversations between the president and his close advisers.

Presidents can assert executive privilege to shield certain confidential communications from compelled disclosure to the judicial and legislative branches.

As the first cabinet official to appear before the new Congress, Whitaker, who was tapped by President Donald Trump in November to fill in for ousted AG Jeff Sessions amid Democratic uproar, will field numerous questions about his conversations with White House officials, including the president, about his role overseeing Robert S. Mueller III’s special counsel investigation.

In a Jan. 22 letter, Chairman Jerrold Nadler outlined a series of questions that he plans to ask Whitaker that “may conceivably implicate executive privilege” since they probe details of Whitaker’s conversations with the president and other White House advisers.

Those questions include:

  • Why did Whitaker decline to recuse himself from overseeing Mueller’s investigation against the advice of Justice Department ethics officials?
  • Did he consult with the White House about the decision not to recuse?
  • What information, if any, has he shared privately with the White House from his briefings with special counsel investigators?

In the January letter, Nadler advised Whitaker to consult with the White House counsel on whether the president would invoke executive privilege to preclude Whitaker from answering those and other lines of inquiry, and to notify the committee of the White House’s decisions.

Whitaker did not meet the deadline to inform the committee within 48 hours of the hearing whether he would cite executive privilege, Nadler indicated in a follow-up letter Wednesday, setting up a potential showdown with Democrats if he declines to answer only certain questions.

Democrats have armed themselves with a subpoena to compel answers from Whitaker, or force him to cite executive privilege, if they feel he is not being forthright.

As it stands now, Whitaker is attending the hearing voluntarily. Currently, he does not need to invoke executive privilege to avoid any questions about his conversations with Trump since his answers are all technically voluntary — that is, until Nadler slaps him with a subpoena.

On Thursday Whitaker said he was willing to testify before the committee, “provided that the Chairman assures me that the Committee will not issue a subpoena today or tomorrow, and that the Committee will engage in good faith negotiations before taking such a step down the road.”

Ranking member Doug Collins of Georgia has argued that the committee is wasting its time interviewing Whitaker, who will likely be replaced by William Barr as early as next week, pending Senate Judiciary deliberations on his confirmation.

“Why are Democrats so set on having Mr. Whitaker testify on Friday? They don’t want to do oversight. They want to hold their own confirmation hearing of Whitaker,” Collins said in a statement to Roll Call. “If we’re sincerely interested in conducting oversight of the DOJ, we should start with the person who’s about to be there for the long haul.”

Flashback: Trump says he doesn’t know Matt Whitaker

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The politics of executive privilege

The tactics of recent presidents who have faced intense scrutiny from congressional and special counsel investigations demonstrate how invoking executive privilege is often more political than it is litigious.

Yes, investigators can take subpoenas and document requests to the courts to compel disclosure. And, yes, the D.C. Circuit Court that rules on questions of executive privilege has historically tended to side with investigators over the president.

But that process takes months.

For Nadler and other House chairmen and chairwomen, who have two years before the next election, the clock is ticking to procure and comb through as many pertinent documents as possible from Trump officials. They will need to prioritize what information is essential to their investigations and what is worth going to court over.

Likewise, the Trump administration will have to assess on a case-by-case basis the potential political backlash of invoking executive privilege to stall congressional investigators. The administration will shield information that it deems is worth the political bruising and volunteer information that is not.

That’s not to say House Democrats have no real leverage of their own.

They could block appropriations to certain federal departments and agencies that they feel are obstructing investigations. They could hold votes for other legislation over Trump’s head to force his cooperation with investigators.

Special counsel investigations, on the other hand, usually do not feel the same time crunch as Congress since they have indeterminate timelines, and an administration shuttering such an investigation would likely amount to political suicide.

But the drawn-out process of compelling documents and testimony through litigation doesn’t just take time — it takes money. 

Bill Clinton used the price tag of independent counsel Kenneth Starr’s Whitewater investigation as a political cudgel to undermine the probe — even though Clinton’s legal team’s serial litigiousness was the primary factor slowing it down.

“Mr. Clinton was quite clever,” said Mark Rozell, a leading scholar on executive privilege and the dean of the Schar School of Policy and Government at George Mason University.

“By delaying the investigation with repeated claims of privilege and forcing the independent counsel to take these cases to the courts for resolution, [he] ultimately dragged out the investigation substantially [and] raised the cost of the investigation,” Rozell said.

The Whitewater investigation, which led to Clinton’s impeachment for lying under oath about sexual relations with an intern, took six years and cost taxpayers more than $70 million.

“That won the game of public opinion, ultimately,” Rozell said. “There’s the narrow legal side to the issue [of executive privilege], but also the political. And sometimes the political wins out.”

Democrats giving Whitaker ‘benefit of the doubt’

Ahead of Friday’s hearing, most Democrats, including Nadler, have expressed optimism that Whitaker will answer their questions frankly.

“Because you have not provided any notification to the committee regarding executive privilege — or, indeed, any communication in response to the January 22 letter — my understanding is that you will provide full and complete answers to these questions when they are asked at your hearing this Friday,” Nadler wrote in his follow-up letter Wednesday.

Rep. Eric Swalwell said that while he has pressing and uncomfortable questions for Whitaker regarding his appointment by Trump and possible subsequent conversations with the president about the trajectory of the special counsel investigation, he will not prejudge the acting AG’s candidness.

“I’m going to give him the benefit of the doubt and hope that he’s transparent,” the California Democrat said.

Some Democrats on the committee, though, are not as confident that Whitaker will freely offer up details from his conversations with Trump about the special counsel.

“I would suspect that the entire Trump administration will resist anything we do,” Rep. Steve Cohen said, citing Trump’s State of the Union warning Democrats not to impede his agenda with investigations into his administration — even though executive oversight is Congress’ constitutional prerogative.

“When we hear at the State of the Union that you can’t have ‘peace and legislation’ if you have ‘war and investigation’ … that’s just not a very acceptable idea,” the Tennessee Democrat said. “But that’s what we’re going into, and that’s the voice from the president.”

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