Last month after attending the House Judiciary Committee’s hearing for then–acting Attorney General Matthew Whitaker, I lambasted the proceedings as basically pointless. On Tuesday, committee chairman Jerrold Nadler got a bit closer to the point.
After a follow-up meeting with Whitaker and Office of Legal Counsel attorney Steven A. Engel last week, Nadler sent Engel a series of questions that the former AG has refused to answer, having cited the potential that President Donald Trump might assert executive privilege.
Nadler’s request is simple: Is the president asserting executive privilege, or not? If the answer is no, Whitaker should be compelled to answer the questions. If the answer is yes, then—as Nadler noted in his letter—that privilege can be challenged on the grounds that it was being “invoked to conceal evidence of misconduct.” The case could eventually make it to court.
The questions focus on whether or not after Whitaker’s appointment as acting attorney general, Trump ever discussed the legal cases against his former attorney Michael Cohen—in which the president has been directly implicated in a felony—with Whitaker. Nadler also said that his committee had reason to believe that Trump had spoken with Whitaker about potentially getting U.S. Attorney for the Southern District of New York Geoffrey S. Berman to unrecuse himself from that case. Whitaker refused to answer questions about what he and Trump may have discussed regarding Berman’s recusal, and Nadler is asking the White House to state definitively whether it is invoking executive privilege or not. He gave Engel a March 29 deadline to answer.
These question are important, as Nadler notes, because they directly implicate whether Trump attempted to interfere on his own behalf in an investigation in which he is “in the best-case scenario […] an unindicted co-conspirator.” The Judiciary Committee’s bailiwick includes potential impeachment proceedings against the president. Determining to what extent Trump may have sought to obstruct justice is clearly part of that constitutional responsibility—the impeachment charges against both Richard Nixon and Bill Clinton included obstruction of justice.
My frustration last month had to do with the circus atmosphere around Whitaker’s hearing, which seemed to only be fostered by Nadler threatening to use a subpoena against Whitaker and then quietly backing down after the then-attorney general threatened to cancel his appearance.
Ultimately, Nadler appears to now be playing this one correctly. He also seems to have walked the White House to the point where it may actually be forced to respond to executive privilege queries that it has stonewalled Democrats on for nearly two years.
In the letter, Nadler said that he had extracted a promise from Engel to “to take a narrowly focused set of questions to the White House for review as government policy requires.” Nadler also noted that, in threatening to withdraw Whitaker’s appearance last month, Assistant Attorney General Stephen Boyd suggested that the White House and Congress work together in “a joint effort by the Committee and the Department to negotiate a mutually acceptable accommodation.”
Now Nadler is taking Boyd up on that offer. Accepting the proposal to attempt to reach a mutual accommodation is precisely what Nadler needed to do in order to be able to argue that he tried every possible alternative before beginning a messy subpoena fight. But if the White House refuses to reach a privilege determination and Whitaker continues to stonewall, Nadler will now be on firmer ground if the case is tested in the courts.
While this Whitaker skirmish feels like a small one, it is actually quite important. As I’ve noted since 2017, the White House has used a phony non-assertion of executive privilege as a shield to seek to protect the president from valid questions about potential abuses of power. Nadler is now using his committee to challenge that.
This was by no means the only important action Nadler’s committee has taken in recent days. Earlier this month, the Judiciary Committee sent document requests—the precursor to any subpoenas—to 81 individuals and entities in Trump’s orbit. On Monday, the committee announced that it had received “a large number” of documents from “many” of the individuals approached. On Tuesday, Republican staffers confirmed to Politico that document total was more than 8,000, many of which came from Steve Bannon and Tom Barrack.
Meanwhile, the parent company of the National Enquirer, AMI—which was at the center of the Cohen hush money case—also agreed to cooperate with the committee. So did former national security advisor and current federal cooperating witness, Michael Flynn. And on Wednesday, Politico reported that Rick Gates would be open to assisting the probe “in the coming months,” but could not at the moment because of his own ongoing cooperation with prosecutors.
Finally, the Wall Street Journal reported on Wednesday that the committee is planning to send a second wave of document requests, including to Cohen, Trump attorney Rudy Giuliani, former Secretary of State Rex Tillerson, and former top Trump economic advisor Gary Cohn.
While everyone in politics continues to wait for Mueller’s report, Nadler is wasting no time setting the groundwork for a full-scale probe of how the president may have sought to corrupt the DOJ for his own personal gain.
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