As Washington braces for special counsel Robert Mueller’s final report on Trump and Russia, a key question hangs over his investigation: Nobody’s been willing to say, on the record, who’s actually in charge of it.
On Tuesday, senators will start grilling the man who could take the reins, President Trump’s nominee for attorney general, William Barr. Yet, as Congress prepares to turn its attention to Trump’s new pick, the old one is still under intense scrutiny.
Acting Attorney General Matt Whitaker’s brief tenure has unleashed a torrent of criticism and legal challenges over his scant qualifications, checkered resume, and outspoken attacks on Mueller. Those concerns have only grown in recent weeks, as Whitaker has made clear he intends to ignore the advice of DOJ ethics officials to recuse himself from the probe.
Now, Democratic leaders in Congress want to know who’s overseeing the special counsel: Whitaker or Deputy Attorney General Rod Rosenstein, the man who tapped Mueller to lead the special counsel’s investigation in the first place. The uncertainty has already triggered a demand from Congress for Whitaker to explain himself under oath by the end of the month.
“The public is entitled to know why you chose to disregard the advice of career ethics officials at the Department with respect to your oversight of the Special Counsel,” Rep. Jerrold Nadler, the Democratic chairman of the House Judiciary Committee, wrote in a letter to Whitaker last week. “Similarly, we are entitled to a clear explanation of the current line of responsibility for the supervision of the Special Counsel’s investigation.”
Though a lack of clarity isn’t uncommon for the DOJ, which doesn’t typically issue detailed explanations about internal chains of command for specific investigations, former officials and legal experts questioned why the department hasn’t moved to address the confusion.
“I certainly think it would have been better, given all the questions raised about Whitaker being involved and supervising this investigation, for the department to officially come out and make a statement,” said Mary McCord, the former senior Justice Department official who previously led the department’s investigation into foreign election interference.
“Like much of Trump World, this is all very weird and worrisome.”
The Department of Justice has not responded to repeated emailed questions from VICE News about who is overseeing the Mueller investigation.
“Like much of Trump World, this is all very weird and worrisome,” said Seth Waxman, a former federal prosecutor in Washington, D.C.
Whitaker brushed aside DOJ ethics advice in December, despite an official warning that his past criticisms create reasonable doubts about his impartiality. But since then, crickets.
The Washington Post, citing unnamed officials, reported last week that Rosenstein, the department’s No. 2 official, has continued to execute regular supervision of the probe. Yet it remains unclear if Whitaker has exerted any influence over Rosenstein or Mueller's probe.
Such an arrangement would in fact be standard operating procedure, former DOJ officials said.
“The uncertainty is unnerving, but the not-knowing part is somewhat typical,” said Jens David Ohlin, vice dean of Cornell Law School. “Normally the Justice Department is quiet about ongoing investigations.”
But Senate Democrats fret that Whitaker’s decision to override the recusal recommendation indicates that the DOJ’s internal ethics procedures aren’t up to the task of protecting Mueller. Such concerns have only intensified with reports emerging that Rosenstein is eyeing an exit in the coming months.
“Not only does this [decision not to recuse himself] raise serious concerns about Mr. Whitaker’s current actions as Acting Attorney General, but it also calls into question DOJ’s ethics procedures to assess and address potential conflicts of William P. Barr, President Trump’s nominee to be Attorney General,” Senate Judiciary Democrats wrote in a letter on Friday to the department’s inspector general, demanding a review of the DOJ’s ethics processes.
“He might be trying to have his cake and eat it too.”
Whitaker hasn’t spoken out publicly on the Mueller investigation since his appointment shortly after the midterm Congressional elections in November. Instead, his tenure has featured several trips outside of Washington, and speeches on unrelated matters. Days after his appointment, he went home to Iowa to address the Rural and Tribal Elders Summit. In December, he went to St. Louis to speak about violent crime.
One possible explanation for the confusing state of affairs is that Whitaker has been trapped between an enraged president and newly-empowered House Democrats — and is now just trying to avoid getting stomped by either of them.
In refusing to step aside, he may be trying to avoid the fate of his predecessor, Jeff Sessions, who was hectored and insulted by President Trump for months on Twitter for his own recusal.
But by staying out of the details, Whitaker may also be trying to avoid going down as the guy who thwarted Mueller’s historic investigation, a move certain to spark volcanic blowback from Congress, the media and even his own department, legal experts said.
“He might be trying to have his cake and eat it too,” said David Kris, who held top positions in the DOJ under both former presidents Barack Obama and George W. Bush.
Whitaker may be “placating a volatile President by officially not recusing, but trying to avoid risk and controversy by not actually doing anything,” said Kris, founder of the Culper Partners consultancy.
Still, there’s nothing stopping Whitaker from throwing his weight around at any moment, and because of the secrecy surrounding the investigation, we can’t be sure he hasn’t already.
The rules governing the special counsel say that the Attorney General has the power to veto Mueller’s most important investigative or prosecutorial decisions, if he deems them “inappropriate or unwarranted under established departmental practices.”
“In the end, it is difficult to see a scenario where the American people don’t find out the results of the Mueller investigation.”
That means Whitaker may just be waiting to block any move that would seriously threaten Trump’s inner circle, such as indicting any of Trump’s children, or trying to subpoena the president, legal observers said.
Whitaker would eventually have to report any such incidents to Congress, but only after Mueller has concluded his investigation.
Amid reports that Mueller may be just weeks away from filing a report, a debate is also raging in legal circles over whether the Attorney General — either Whitaker, or his yet-to-be-confirmed successor, Bill Barr — would be able to successfully exercise executive privilege over some of Mueller’s key findings, and keep them out of public view.
“In the end, it is difficult to see a scenario where the American people don’t find out the results of the Mueller investigation,” said Waxman. “But things are setting up to be very combative and potentially problematic before this all ends. ”
Cover: Acting Attorney General Matt Whitaker, right, listens as President Donald Trump speaks to the media before signing anti-human trafficking legislation, Wednesday Jan. 9, 2019, in the Oval Office of the White House in Washington. (AP Photo/Jacquelyn Martin)