Acting Attorney General Matthew G. Whitaker said he will not appear before Congress on Friday without assurances that he won’t be subpoenaed — giving Democrats a deadline of 6 p.m. Thursday to respond.
Whitaker’s move came shortly after the House Judiciary Committee voted along party lines to give its chairman the authority to subpoena Whitaker’s testimony, should he not appear or answer lawmakers’ questions.
The confrontation highlights efforts by Democrats to assert their newfound control of the House of Representatives as a check on the Trump administration’s power, and the administration’s determination to push back against congressional investigations decried by the president. However the Whitaker subpoena standoff ends, it may set the tone for months or years more of wrangling between the White House and congressional Democrats.
Leading up to Friday’s scheduled hearing, Democrats vowed to press Whitaker about his conversations with President Trump, and Whitaker’s decision not to recuse himself from special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 presidential campaign.
“I remain willing to appear to testify tomorrow, provided that the chairman assures me that the committee will not issue a subpoena today or tomorrow, and that the committee will engage in good faith negotiations before taking such a step down the road,” Whitaker said in a statement.
He said the committee has “deviated from historic practice and protocol and taken the unnecessary and premature step of authorizing a subpoena to me, the acting attorney general, even though I had agreed to voluntarily appear.” He said that move is a breach of his agreement with the panel.
“Political theater is not the purpose of an oversight hearing, and I will not allow that to be the case,” he said.
Whitaker’s position was relayed in a letter sent Thursday to the committee.
“Respectfully, this proposed approach reflects a striking departure from the constitutionally based understanding between our co-equal branches of government,” wrote Stephen Boyd, head of the Justice Department’s Office of Legislative Affairs.
Whitaker, the letter said, is willing to discuss with lawmakers his decision not to recuse himself from the Mueller investigation. “We do not believe, however, that the committee may legitimately expect the acting attorney general to discuss his communications with the president,” Boyd wrote.
The panel vote on the subpoena along partisan lines underscores the new political tensions around Mueller’s work now that Democrats control the House.
“I hope not to have to use the subpoena,” Rep. Jerrold Nadler (D-N.Y.), the committee chairman, said earlier Thursday. “Unfortunately, a series of troubling events over the past few months suggest that we should be prepared.”
Daniel Schwarz, Nadler’s spokesman, said, “That’s what we’ve been talking about this whole time.” He stressed that the panel had sent Whitaker many letters and requests to settle points of his testimony in advance, to which he had chosen not to respond. “You can’t pretend there’s been no conversations for the last month.”
Democrats worry that Whitaker, whose public comments before taking over the Justice Department suggested he was sympathetic to Trump and critical of the Mueller inquiry, may seek to evade questions he is asked during the proceedings.
They pointed to a pattern of administration witnesses, such as former attorney general Jeff Sessions, who refused to answer certain queries by suggesting that the president “might” want to invoke executive privilege over certain parts of their testimony, to justify the concern.
“The committee can and should expect a direct answer to any question,” said Nadler, who opted to send Whitaker his questions in advance and require that he tell the panel about any plans to invoke executive privilege at least 48 hours before the hearing. “That deadline has come and gone . . . therefore I expect the acting attorney general to answer all of these questions without equivocation.”
Republicans objected to the move, arguing that Whitaker had not given the panel a legitimate reason to be concerned — and that approving a preemptive subpoena would set a bad precedent for the panel.
“This subpoena is nothing short of political theater,” said Rep. Douglas A. Collins (Ga.), the panel’s ranking Republican. “I’m concerned about the chilling effect on other witnesses who would be willing to testify voluntarily, and when they see this happen, they’ll just hold out.”
After Whitaker made his intentions clear, Collins said that Nadler and the Democrats had “overplayed their hand” with the goal of scoring “political points” against the president. “They authorized a preemptive subpoena, treating a voluntary witness as hostile,” he said.
Republicans had attempted to get the committee to expand the subpoena-in-reserve to give Nadler the authority to subpoena Deputy Attorney General Rod J. Rosenstein, whom GOP members of the panel have long wanted to question about reports he suggested recording the president and invoking constitutional procedures to remove him from office.
If the panel had questions about oversight of Mueller’s inquiry, Republicans also argued, it would be better to question Rosenstein, who had been monitoring it for far longer than Whitaker.
“We want to add Mr. Rosenstein to get at the heart of the matter of the questions,” said Rep. Andy Biggs (R-Ariz.), who presented the amendment to add Rosenstein’s name to the subpoena authorization. “He could probably answer those questions more thoroughly than anybody else.”
The panel voted against the proposal, also along party lines.
Whitaker’s hearing, should it proceed according to schedule, probably will be one of his final appearances as acting attorney general. The Senate Judiciary Committee voted along party lines Thursday to advance the nomination of William P. Barr to serve as attorney general, and the full Senate is expected to vote on confirmation next week.
Although several Democrats have opposed Barr’s nomination out of concern that he might limit Mueller’s investigation or keep the final report out of the hands of the public, he is expected to be confirmed, as he needs to secure only a simple majority of the GOP-led Senate for his nomination to be approved.