The Whitaker Hearing: Potential Executive Privilege and Subpoena Fireworks

It appears acting Attorney General Matthew Whitaker allowed an important deadline to pass on the eve of his testimony before the House Judiciary Committee. Rep. Jerrold Nadler (D-N.Y.), as chair, had directed Whitaker to inform the committee “no later than” 48 hours before Friday’s hearing whether President Donald Trump planned to assert executive privilege over a range of topics. This letter is among a series of somewhat unusual steps — including formal committee consideration of a subpoena authorization — taken by Nadler in advance of the Whitaker hearing to prepare the battlefield and short-circuit potential executive branch efforts to evade testimony about Whitaker’s communications with Trump and other White House officials.

Nadler had to threaten a subpoena in order to obtain Whitaker’s commitment to testify. On Jan. 15, Nadler sent a letter reiterating the committee’s demand for Whitaker’s Feb. 8 appearance, after Department of Justice handlers suggested that the government shutdown might delay their boss’s testimony. In the letter, Nadler emphasized that the committee expected Whitaker to “provide direct answers to questions posed by members of both parties.” And he planted a seed: “If you plan to invoke executive privilege in an attempt to avoid answering any particular question, I ask that you consult with the White House well in advance of the hearing.”

In its first two years, the Trump administration has avoided having to formally invoke executive privilege, because the Republican-led congressional committees did not issue subpoenas or threaten contempt in the face of stonewalling. I have written about some of those early skirmishes — and the failure to enforce congressional prerogatives – in the cases of Steve Bannon, then-Attorney General Jeff Sessions, and Sally Yates as former acting attorney general. That pattern will change now under a Democratic House majority.

A week after his letter repeating the committee’s demand, Nadler on Jan. 22 sent another, reiterating the committee’s expectation that Whitaker specifically testify about White House contacts with the DoJ. It was an effort by Nadler to preempt fancy footwork over executive privilege at the hearing. Nadler writes:

[W]hen you appear before the Committee, I expect to ask you about certain communications you may have had with the White House. As I stated in my January 15 letter, we will expect you to provide direct answers to these questions. My hope is that you will answer these questions voluntarily so the Committee can avoid resorting to compulsory process.

Topics the Committee Intends to Pursue

Acknowledging that some of the committee’s questions “may conceivably implicate executive privilege,” Nadler outlines topics the committee intends to pursue. He requests that “if President Trump plans to invoke executive privilege to any of these questions, I ask that you notify the Committee in writing no later than 48 hours in advance of the hearing.”  Included in the topics are discussions with President Trump or White House officials about:

  • Firing then-Attorney General Jeff Sessions.
  • Oversight of the Special Counsel’s Russia investigation.
  • Whitaker’s decision not to recuse from the Russia investigation.
  • The Southern District of New York’s hush money investigation.
  • Sessions’ tasking of John Huber, U.S. Attorney for the District of Utah, to review matters related to Hillary Clinton.

Then, on Tuesday, Feb. 5, Nadler issued a notice for a committee business meeting for today, the day prior to Whitaker’s hearing, to consider a subpoena for the acting attorney general should he refuse to answer the questions outlined in Nadler’s correspondence. At that meeting, the committee will vote formally on the subpoena. In a statement, Nadler said:

For the first two years of the Trump Administration, Congress allowed government witnesses to dodge uncomfortable questions. That era is over. In an abundance of caution-to ensure that Mr. Whitaker both appears in the hearing room on Friday morning and answers our questions cleanly, I have asked the Committee to authorize me to issue a subpoena to compel his testimony.

To be clear, I hope never to use this subpoena. Weeks ago, we gave Mr. Whitaker a list of questions we hope to ask him about his communications with the White House and his refusal to recuse himself from oversight of the Special Counsel’s investigation. If he appears on time and ready to answer those questions, the subpoena will be entirely unnecessary.

I intend to be fully transparent about this process. I shared my plans with Ranking Member Collins last week and, when he expressed reservations, we scheduled this authorizing resolution for a markup. There need not be surprises here. We have been quite public about our intention to obtain this information from Mr. Whitaker.

Then, on Feb. 6, Nadler sent Whitaker a letter acknowledging the passage of the 48-hour pre-hearing deadline. He observes:

You have now had more than two weeks to engage in any necessary consultations with the White House Counsel and the President. 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.

Maximizing Pre-Hearing Advantage

Nadler’s pre-hearing maneuvers serve multiple purposes that advantage the committee majority.

As a matter of procedural fairness, they provide Whitaker, DoJ, the White House, and the President with notice of the committee’s intended topics of inquiry. Whitaker will not be blindsided by this line of questioning.

In addition, the act of releasing questions and setting formal expectations regarding potentially privileged matters creates two rounds of news stories that will help build interest in the Whitaker hearing. Those media stories, in turn, will help ratchet up public pressure on Whitaker to answer the committee’s questions.

Now that Whitaker has let the committee’s deadline pass, the pressure on him will only intensify at the hearing if he refuses to answer questions the panel signaled were coming. These pre-hearing moves by Nadler would then transform into a bludgeon. On the substance of White House communications, the committee will express righteous indignation at any refusal to respond, and the letters, notice, and missed deadline will add procedural indignation to the fury.

Finally, there is legal significance to the missives. In the Jan. 22 letter, Nadler writes that the “Committee will not accept your declining to answer any question on the theory that the President may want to invoke his privileges in the future.” This pre-hearing notice of the committee’s position may facilitate the committee’s ability to hold Whitaker in contempt upon conclusion of Friday’s hearing.

Theoretically, Nadler could use unilateral subpoena power on Whitaker from the dais after an over-the-shoulder consultation with Ranking Member Doug Collins (R-Ga.) (as requiredby the House rules package). But a formal markup allows every committee member to go on record, which is a better practice for democratic legitimacy. It also adds to the case Nadler is creating that Whitaker has had ample notice of the committee’s expectations before he arrives to testify.

Republican Objections

Collins decried the precedent the subpoena markup would establish. He told Fox News: “The message to witnesses here is, if you make the time and effort to appear of our own accord, Democrats are going to subpoena you anyway.”

But Collins overstates the risk of setting a precedent. First, the concern driving the subpoena is really more about the content of Whitaker’s testimony than his agreement to appear. Second, in Whitaker’s case, the panel’s areas of inquiry present readily identifiable executive-privilege issues related to the White House. As such, these moves by Nadler have a tactical purpose that will not apply in the vast majority of oversight hearings involving administrative witnesses.

On the other hand, if Nadler’s front-loaded approach has the intended effect of either getting desired answers or forcing President Trump to assert executive privilege – in other words, put his legal and political cards on the table — other committees likely will pursue a similar strategy for senior officials involved in controversies, when communications with the White House are relevant.

The Judiciary Committee likely will authorize the subpoena today. Then, if Whitaker refuses to answer questions about his communications with President Trump on Friday, Nadler will serve him with the subpoena from the dais right then and there. The pre-hearing letters and subpoena markup will make it difficult for the DoJ to decry a lack of notice. The record will show, in publicly available information, that Whitaker had not expressed an intent to refuse to answer the questions Nadler previewed.

At that point, under subpoena and on notice, further refusal on Whitaker’s part would render contempt of Congress ripe for consideration.

 

Image: Acting Attorney General Matthew Whitaker delivers remarks to the Joint Terrorism Task Force on November 21, 2018 in New York City. (Photo by Stephanie Keith/Getty Images).

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.