Whitaker’s post provides ample tools to disrupt Mueller probe

Matthew Whitaker doesn’t have to fire Robert Mueller to throw a wrench in the special counsel’s investigation.

Much of the focus on President Trump’s appointment of Whitaker to temporarily replace former Attorney General Jeff Sessions has been on the possibility of Whitaker removing Mueller, a move that would undoubtedly spark public outrage and trigger full-scale investigations by Democrats, who are poised to take control of the House in January.

{mosads}But federal regulations offer Whitaker, now acting attorney general, broad authority with respect to the special counsel that extends beyond the ability to remove Mueller, giving him the ability to curtail the probe in ways that would not necessarily become public knowledge until after the Russia investigation is over.

Whitaker has the power to weigh in on any major steps in the probe, such as the issuance of new subpoenas and indictments.

Should he remain at the helm of the Justice Department until the conclusion of the investigation, it will be up to Whitaker to decide which portions, if any, of Mueller’s final report are submitted to Congress or released to the public.

“He has a lot of authority, starting with his authority to remove Mueller if he finds he has good cause for doing so under the relevant regulation,” said Stephen Vladeck, a University of Texas law professor. “There are both hard and soft powers that the relevant regulation gives to the acting attorney general.”

Whitaker has assumed oversight of the probe from Deputy Attorney General Rod Rosenstein at a critical point in the investigation, as the special counsel reviews Trump’s written answers to questions about potential collusion between his campaign and Moscow in 2016 and mulls further steps in his scrutiny of longtime Trump ally Roger Stone.

There are no outward signs of Whitaker limiting the probe. In a court filing Monday, Mueller’s team signaled that their authorities remain intact following the leadership shuffle at the Justice Department. Sessions submitted his resignation at Trump’s request on Nov. 7, and Whitaker was named acting attorney general that same day.

Democrats and other critics of the president have warned that Trump could be laying the groundwork to impede the investigation with Whitaker’s appointment. Last week, retiring Sen. Jeff Flake (R-Ariz.) unsuccessfully tried to force a vote on legislation that would protect Mueller from being fired. Senate Majority Leader Mitch McConnell (R-Ky.) has said such a measure is not necessary because he does not believe Mueller is in danger of being removed.

The Justice Department declined to comment on the concerns surrounding Whitaker. It also declined to comment on whether Whitaker has taken any steps with respect to the special counsel investigation since his appointment.

Whitaker publicly criticized the investigation on several occasions before joining the Justice Department, arguing in an August 2017 CNN op-ed that the investigation into Trump was going “too far” and should be limited.

Trump, meanwhile, has increasingly expressed disdain for the probe and in August publicly called on Sessions to “stop” the investigation “right now.”

In a recent interview with “Fox News Sunday,” Trump said he was unfamiliar with Whitaker’s previous views on the Mueller probe before appointing him. He also indicated he would not intervene if Whitaker took action to pump the brakes on the investigation.

“It’s going to be up to him. I think he’s very well aware politically.” Trump said. “There was no collusion whatsoever, and the whole thing is a scam.”

According to federal regulations in place since 1999, Mueller is not subject to day-to-day supervision from the acting attorney general or any other Justice Department official. He is also equipped with the power and independent authority equal to that of a U.S. attorney.

However, Mueller is required to notify the acting attorney general of any “significant events” in the investigation, ranging from plans to pursue charges or subpoena witnesses to testify. Whitaker can request briefings on any investigative or prosecutorial steps and block actions that he deems to be inappropriate or unwarranted under department practices.

Legal analysts say Whitaker, in theory, could prevent Mueller from subpoenaing Trump to testify before the grand jury, a prospect that is already subject to legal debate.

On Tuesday, Trump submitted written responses to the special counsel’s questions on collusion but has not agreed to a sit-down interview sought by Mueller’s team. If negotiations with Trump’s lawyers on an interview falter, which appears likely, it is possible Mueller could try to subpoena the president to testify.

“He’s got a lot of latitude to run his investigation,” Randall Eliason, a law professor at George Washington University, said of Mueller. “But the attorney general has ultimate authority, so in theory, he could stop the special counsel from taking certain steps.”

Eliason was doubtful that Whitaker would take drastic steps to impede the investigation, given the resistance he would likely meet within the department and from people like Mueller, Rosenstein and FBI Director Christopher Wray.

{mossecondads}“I think there’s the theory and the reality,” Eliason said. “There’s a lot of institutional weight and gravity within the Department of Justice about doing the right things and the way things are done.”

He added that it would be “pretty tough for Whitaker to sit in a meeting with Bob Mueller and Christopher Wray and Rod Rosenstein and say, ‘we’re not going to do this.’ ”

Whitaker would have to inform Congress of any move to stop certain actions by the special counsel. But that notification isn’t required until after the investigation has concluded.

Whitaker also has control over the special counsel’s budget and staff.

In a 2017 CNN interview, Whitaker envisioned a scenario in which a Sessions replacement could reduce Mueller’s budget “so low that his investigations grinds to almost a halt.”

Mueller would need Whitaker’s approval to expand the investigation to probe matters beyond his original jurisdiction.

It is unclear when Mueller will wrap up his probe, but those who are closely tracking the developments say the investigation is likely in the late fact-finding stages. The special counsel is required to submit a final confidential report to the attorney general.

That report is expected to contain grand jury testimony and other sensitive information, increasing the odds that the government will keep at least some of it sealed. But Democrats in Congress have already signaled they will fight to make its contents public, which could spur a tense standoff with the administration.

“I would do anything and everything in my power to have the findings presented not only to the Congress but to the people of the United States,” Rep. Elijah Cummings (D-Md.), the top Democrat on the House Oversight and Government Reform Committee, said recently on CBS’s “Face the Nation.” “I think it’s very important.”

Any move by the acting attorney general viewed as limiting the investigation is likely to be met with intense political blowback. House Democrats could set hearings to investigate allegations of interference or obstruction and hold funding bills hostage in order to force actions with respect to the Russia probe.

Legal experts such as Steven Cash, a lawyer at Day Pitney LLP who used to work for the Senate Intelligence Committee and as legal counsel to Sen. Dianne Feinstein (D-Calif.), said that if the administration were to end the investigation prematurely or fire the special counsel, those moves would not erase the work Mueller has already done, such as securing the cooperation of several key witnesses, including former Trump campaign chairman Paul Manafort, and compiling grand jury testimony and evidence in the 18 months since the start of his investigation.

“It’s really hard to put that toothpaste back in the tube,” Cash said.