Acting Attorney General Matthew Whitaker is scheduled to appear before the House Judiciary Committee on Friday, and if the prelude to the hearing is any indication, this could get very nasty, very quickly.
Committee chair Jerrold Nadler (D-N.Y.) has a plan of action at the ready if Whitaker refuses to answer questions. In January, Nadler reached out to Whitaker, providing him with a list of questions that the Committee plans on asking. Nadler requested that Whitaker give at least 48 hours notice if he planned on invoking executive privilege in order to avoid answering certain questions. Whitaker did not do so.
On Wednesday, Nadler sent a letter to Whitaker saying that, in light of this, he expects full cooperation.
“Because you have not provided any notification to the Committee regarding executive privilege—or, indeed, any communication in response to the January 22 letter—my understanding is that you will provide full and complete answers to these questions when they are asked at your hearing this Friday,” Nadler said in his letter.
The letter came a day after Nadler took the more extreme measure of pursuing a subpoena, in the event that Whitaker doesn’t cooperate.
“In an abundance of caution—to ensure that Mr. Whitaker both appears in the hearing room on Friday morning and answers our questions cleanly—I have asked the Committee to authorize me to issue a subpoena to compel his testimony,” Nadler said in a statement. “If he appears on time and ready to answer those questions, the subpoena will be entirely unnecessary.”
Whitaker’s predecessor, Jeff Sessions, notably refused to answer questions at a congressional hearing without invoking privilege, but the House—then controlled by Republicans—took no action against him. Now that Democrats are in charge, Nadler said, “That era is over.”
If it does come down to a subpoena, and Whitaker doesn’t comply with it, he could theoretically face a contempt charge. A former congressional staffer pointed out that Nadler laid the groundwork for supporting such a move.
“One thing the court looks at is, were people trying to play nice and work this out before they came to us?” the former staffer told The Daily Beast. “Did they try and figure this out before they came here? The committee has put itself on a better footing, already trying to work this out with Matt Whitaker before he shows up. That will matter to a court when it comes to enforcing a contempt resolution, which would essentially be asking the court to compel him to answer the questions.”
The 48-hour notice that Nadler gave is not legally binding, but it is evidence that he tried to work with Whitaker to avoid a more serious clash.
CNN legal analyst Elie Honig illustrated how it could all go down. It would take silence from Whitaker, followed by noncompliance with a subpoena, which would lead to the matter going before a federal judge. If the court then compelled Whitaker to answer questions and he still refused for one reason or another, he could be held in contempt.
Great insight from @woodruffbets. This *could* happen: Whitaker refuses to answer; Nadler drops a subpoena on the spot; Whitaker still refuses, invokes exec privilege; parties go to court; court orders Whitaker to testify (or not); if so and he defies, contempt vs. AG. Fun times. https://t.co/Fu92wlG74T
— Elie Honig (@eliehonig) February 7, 2019
Law&Crime reached out to Nadler’s office about the possibility of a contempt charge, but so far no one has responded.
Meanwhile, Justice Department officials aren’t necessarily impressed with Nadler’s maneuvering.
“It’s unfortunate that they decided to engage in this kind of political theatrics, especially given the fact that this is someone who has voluntarily agreed to come in,” a senior official told the Daily Beast. “We’ve never seen this before.”
Update: The Daily Beast’s Betsy Woodruff reported that on Thursday, Whitaker threatened to cancel his appearance altogether, unless Nadler promised him before 6:00 p.m. that he would not issue a subpoena.
NEW: DOJ tells House Judiciary Chairman Jerry Nadler that Matt Whitaker ***will not testify*** unless Nadler promises in writing by 6pm that he won’t subpoena him.
Here’s our story from earlier detailing drama: https://t.co/nkFwp6ZUkH
— Betsy Woodruff (@woodruffbets) February 7, 2019
[Image via Nicholas Kamm/AFP/Getty Images]