THREAD: Why is Whitaker refusing to testify unless the House agrees not to subpoena him? https://t.co/YYJXgYdxEI— Renato Mariotti (@renato_mariotti) February 7, 2019
I include the whole thread because this is a picture of the next two years. It's not going to be quite so simple as Congress asks and the Administration answers. It should be, but this is Trump, and the sooner we stop talking about "disruptive" and "untraditional" and recognize this is as defiance of the Constitution itself (by being completely opposed to the functions of government outlined therein, not by actions that are necessarily so extreme as to be "unconstitutional"), the sooner we'll understand what Trump and the GOP are doing.
1/ Acting Attorney General Whitaker agreed to voluntarily testify before the House Judiciary Committee tomorrow. In preparation, Chairman Jerry Nadler provided Whitaker with questions in advance and asked Whitaker to identify if he would invoke executive privilege.— Renato Mariotti (@renato_mariotti) February 7, 2019
2/ Nadler did so because during the past two years when the GOP controlled Congress, Trump Administration officials would routinely refuse to answer questions without invoking executive privilege. They did so knowing that Congressional Republicans wouldn't compel their testimony.— Renato Mariotti (@renato_mariotti) February 7, 2019
3/ Generally speaking, "Executive privilege" is a narrow doctrine that protects internal deliberations between the President and top Executive Branch officials, so that they can give blunt and forthright advice without concern that it will be publicly revealed later.— Renato Mariotti (@renato_mariotti) February 7, 2019
4/ It is not proper for witnesses to refuse to answer on the basis of executive privilege unless the president has formally asserted executive privilege. So Nadler presented the questions in advance to give Trump time to invoke executive privilege before the testimony.— Renato Mariotti (@renato_mariotti) February 7, 2019
5/ This way, Whitaker couldn't say that he was surprised by a question and needed to give Trump time to decide whether to invoke executive privilege. Similarly, Nadler prepared to subpoena Whitaker in case Whitaker refused to answer any of the questions.— Renato Mariotti (@renato_mariotti) February 7, 2019
6/ A voluntary witness (as Whitaker was) can refuse to answer questions, but a witness appearing pursuant to a subpoena is required to testify. If Whitaker was subpoenaed and refused to answer questions at that point, Congress could refer him to the DOJ for Contempt of Congress.— Renato Mariotti (@renato_mariotti) February 7, 2019
7/ That is a potential criminal charge, which would itself raise significant conflict of interest issues, given that Whitaker oversees every DOJ official.— Renato Mariotti (@renato_mariotti) February 7, 2019
Obviously Whitaker wants to avoid answering certain questions, which will be hard for him to do if Nadler subpoenas him.
8/ Why, then, is Whitaker pulling back from his voluntary testimony? To run out the clock. If Whitaker doesn't appear tomorrow, Nadler can subpoena him, but that will give DOJ time to fight to limit the scope of the questioning and/or allow Trump to invoke executive privilege.— Renato Mariotti (@renato_mariotti) February 7, 2019
9/ In the meantime, Barr will likely be confirmed and the interest in Whitaker's testimony will be diminished.— Renato Mariotti (@renato_mariotti) February 7, 2019
Based on the thread from @chrisgeidner linked at the top of this thread, it looks like a major concern by DOJ are conversations between Trump and Whitaker.
10/ While DOJ claims that Whitaker made no promises to Trump about undermining the Mueller investigation, there were published reports that Trump asked Whitaker to control the prosecutors in the Southern District of New York.— Renato Mariotti (@renato_mariotti) February 7, 2019
11/ That may be DOJ's main concern. House Democrats and the public deserve to know if Trump is corruptly trying to quash or undermine the investigation of him, his company, and his friends. But DOJ will argue that some of those conversations were protected by executive privilege.— Renato Mariotti (@renato_mariotti) February 7, 2019
12/ If a criminal prosecutor (like Mueller or the prosecutors in the Southern District of New York) wants to find out what Trump said to Whitaker, under existing precedent those conversations would almost certainly not be privileged.— Renato Mariotti (@renato_mariotti) February 7, 2019
13/ It is less clear whether an assertion of executive privilege would succeed in response to a Congressional inquiry, but I expect this may be tested in the courts in the months to come, as Democrats conduct aggressive oversight and the Trump Administration resists them. /end— Renato Mariotti (@renato_mariotti) February 7, 2019
One interesting point there is the "run out the clock" strategy, which may work for the Congressional hearing but won't work for Mueller or SDNY, if they are really interested in what Whitaker knows about what Trump tried to do. Likely, of course, both investigators already know, and may not even need Whitaker's testimony. I don't assume superhuman powers of omniscience from the investigators, but if published reports tell us what may be going on, I imagine the investigators (a) already know, or (b) become interested rather quickly. And their process doesn't move as slowly, nor as publicly, as Congressional oversight.
Still, the latter is an important function of our system of government, especially to expose corruption to sunlight. The DOJ panic over Whitaker's testimony stinks to high heaven. I suspect incompetence, rather than Machiavellian strategy, went into the failure to evoke executive privilege before now, because this all seems as organized as a five-alarm panic. Either way, much of what the House tries to do in the next two years is going to wind up in court battles, starting with Trump's tax returns.
No comments:
Post a Comment