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The new acting attorney general Matt Whitaker could try to shut things down. Or he could more subtly interfere.
Attorney General Jeff Sessions, who recused himself from involvement in special counsel Robert Mueller’s Russia investigation, is out.
And Matthew Whitaker, who has publicly brainstormed about how President Donald Trump could rein in Mueller, has been named acting attorney general — putting him in charge of the Russia probe.
What comes next isn’t clear. But it could herald enormous changes for the special counsel’s team.
Up until now, Mueller has generally had the backing of his boss, Deputy Attorney General Rod Rosenstein, and has pursued a vigorous investigation. But their new boss, Whitaker, has made critical public comments about the probe, accusing the special counsel of “going too far,” and praising an article about how Trump shouldn’t “cooperate” with Mueller’s “lynch mob.”
— Matt Whitaker (@MattWhitaker46) August 7, 2017
Whitaker even mused about how an acting attorney general could effectively kill the investigation. “I could see a scenario where Jeff Sessions is replaced with a recess appointment,” Whitaker said on CNN last year, “and that attorney general doesn’t fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt.”
At that point, Whitaker was just an outside commentator. But two months later, he joined the Justice Department — getting brought in to be Sessions’s chief of staff. And now, he’ll be in the position to do exactly what he once said could be done to the special counsel’s probe.
Now, what Whitaker actually will do in his new post remains unclear. We don’t have a very good idea of what’s been going on behind the scenes with Mueller’s investigation lately. We don’t truly know what evidence he’s amassed, who’s in the crosshairs, or what his hoped-for next move might be.
Still, there appear to be three basic scenarios for what happens next. Whitaker could act as a total hatchet man and kill the investigation entirely. He could carry out more subtle interference by letting Mueller continue but limiting what he can do. Or he could, in the end, let the work continue.
Scenario No. 1: Whitaker as the hatchet man who ends the probe
The most alarming scenario is Trump has installed Whitaker specifically to do the president’s bidding and thwart the probe — completely shutting things down to protect the president.
Whitaker was harshly critical of the investigation in those public comments he made last year before joining the Justice Department. He’s known to be close to the White House. And Trump has signaled that he won’t be in the attorney general job for long, writing, “A permanent replacement will be nominated at a later date.”
The logic seems appealing: put a loyalist in for the time being, have him do the president’s dirty work by getting rid of Mueller and ending the probe, and then nominate a new attorney general.
Whitaker probably could end the Russia investigation, if he wanted to do so badly enough. But there are some obstacles.
For instance, Rod Rosenstein has testified that he believes that he can legally only fire Mueller if there is “good cause” to do so — and that he’s seen no such good cause. There’s also the potential problem of Whitaker exposing himself to potential obstruction of justice charges at a later date, should he act with corrupt intent to end the investigation. House Democrats will be empowered to investigate whatever Whitaker does when their new majority is sworn in next year, and they surely will.
Additionally, there’s the expected political blowback from suddenly ending the investigation outright. “I could fire everybody right now. But I do not want to stop it, because politically I do not like to stop it,” Trump said Wednesday.
Scenario No. 2: Whitaker lets Mueller continue, but reins him in
Whitaker, too, shied away from calling for Mueller’s firing in his public comments on the matter last year. What he suggested was that Sessions’s eventual replacement should seem to let the special counsel continue — but that he should make behind the scenes moves to interfere with things.
One suggestion from Whitaker was that the new AG should cut Mueller’s budget “so low that his investigation grinds to almost a halt.” That would not be a particularly subtle way of interfering, and would certainly cause the Trump administration problems on the Hill.
But there are more subtle things Whitaker could do to give Mueller a hard time. For instance, he could refuse to sign off on certain new investigative moves or further expansion of the probe. Or he could try and ensure that, should Mueller write a report on Russian interference, it wouldn’t be given to Congress.
Or, as Whitaker once alluded in a tweet, the attorney general could decide not to release Mueller’s findings to the public.
— Matt Whitaker (@MattWhitaker46) August 17, 2017
Scenario No. 3: Whitaker doesn’t actually interfere much
Finally, though things may look ominous, it is also possible that in the end Whitaker will let Mueller’s work largely continue — whether due to fear of exposing himself to obstruction charges, fear of political blowback from Capitol Hill, or because the investigation is just too far along to derail at this point.
There are some rumors that Mueller is even close to wrapping up, in which case interference could be a bad idea for a Trump fan and would end up prolonging the mess further. (It is unclear if those rumors are just wishful thinking from Trump’s team.)
Another possibility is that Whitaker might recuse himself too. This would be quite a twist given Trump’s fury at Sessions for doing just this, but the Huffington Post’s Ryan Reilly reports that DOJ ethics officials have not yet reviewed whether Whitaker’s past comments about the investigation would merit his recusal.
DOJ official says ethics officials have yet to examine whether Whitaker has to recuse on anything Mueller related given his prior commentary and role.
— Ryan J. Reilly (@ryanjreilly) November 7, 2018
Still, it would be up to Whitaker to decide whether to take DOJ ethics officials’ advice. And he’s no Rod Rosenstein or Chris Wray. He’s a hardcore conservative and Trump supporter, who has made his opinions on the Mueller investigation clear. And now, he’s in a position to do something about it.