Blog Ipsa Loquitur

Today, U.S. Attorney General Jefferson Beauregard Sessions III resigned his office in an undated letter to the President. If Sessions had been fired, Deputy Attorney General Rod Rosenstein would have become the Acting Attorney General until the President appointed a replacement. However, because Sessions voluntarily resigned, the President is allowed to choose someone else to become the Acting Attorney General for up to 210 days under the terms of the 1998 Federal Vacancies Reform Act. This person will oversee the Mueller investigation into Russian interference in the 2016 election, taking that responsibility from Deputy AG Rosenstein. (You’ll recall that Rosenstein was supervising the Mueller investigation because AG Sessions recused himself from all 2016 election-related inquiries.)

The President chose as Acting AG Sessions’s chief of staff Matt Whitaker, who has repeatedly criticized the Mueller investigation:

In May 2017, after Trump fired former FBI director James Comey — but before Rosenstein appointed Mueller — Whitaker wrote in an op-ed in the Hill that calls at the time for an independent prosecutor or commission to investigate Russian interference in the 2016 election “ring hollow” because Democrats hadn’t called for special counsels during “scandals” of the Obama administration. Whitaker hadn’t yet joined the Justice Department at that point; he was executive director of Foundation for Accountability and Civic Trust.

“Serious, bipartisan congressional investigations into the Russian allegations have been under way for weeks and they have made progress. Hollow calls for independent prosecutors are just craven attempts to score cheap political points and serve the public in no measurable way,” Whitaker wrote.

Several months later in August, he wrote in a CNN op-ed that he was concerned about reports that Mueller’s office might be investigating the finances of the Trump Organization and Trump’s family.

Acting AG Whitaker is now Special Counsel Mueller’s boss. That has some immediate and profound consequences.

At the outset, it’s important to note that Mueller is almost certainly not going to get fired out of nowhere. Firing FBI Director James Comey started this whole Special Counsel mess, and I think this administration has learned that particular lesson. But there are more subtle ways to mess with Mueller’s investigation.

one: just say no

There are rules for how the Special Counsel’s Office operates. Per 28 CFR § 600.7:

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).

Big developments in the Special Counsel’s cases, whether that’s investigative (subpoenaing evidence, interviewing suspects, etc.) or prosecutorial (presenting evidence to the grand jury, indicting Russian spies, etc.) have to get pre-approval from the AG. Mueller has to explain the particulars of each step in the process, and Whitaker can direct Mueller not to take that step if Mueller asked to do something “inappropriate or unwarranted under established Departmental practices.”

For example, Whitaker in his August 2017 CNN op-ed wrote that Rosenstein should “order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel” in response to reports that Mueller was investigating the Trump family business. Whitaker is now in a position to make that happen; he can wave Mueller off of whatever line of investigation he believes is inappropriate.

The good news is that Whitaker has to report to the House and Senate Judiciary Committees with a list of all the times he told Mueller not to take a specific action. The bad news is that report goes to the Judiciary Committees at the end of the Special Counsel’s investigation, so Whitaker gets to keep his running list of “rejected Mueller actions” private until it’s too late for Congress to do anything about it.

two: the money

Currently, there are thirteen prosecutors working in Mueller’s office. As Acting AG, Whitaker has complete authority over the budget and personnel matters of the Special Counsel’s office. Here’s Matt Whitaker on one of those CNN talking head panel shows in July 2017:

“I could see a scenario where Jeff Sessions is replaced, it would [be a] recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.”

Well, now we can all see that scenario over the coming months. Peachy.

It’s worth noting that last year, the Mueller investigation cost about $17 million. That sounds like a lot of money, except for the $46 million in Manafort’s assets that the government seized in September. I’m not sure what the resale value on ostrich-skin jackets is, but the Mueller investigation has more than paid for itself out of Manafort’s pockets alone.

three: the mole

Honestly, the Mueller investigation has been rolling along for eighteen months, and the FBI investigation for almost a year before that. I don’t know that the investigation is at the stage where it needs a ton of lawyers because it opens up a lot of new avenues; Mueller might spend less time asking permission to pursue new leads and more time handing Whitaker a stack of indictments. What kind of boss would say no to that?

Even if Mueller isn’t asking permission, he still has to explain his investigative and prosecutorial actions to his boss. What if Whitaker simply tells the Trump White House who and what the Special Counsel is investigating? He could provide nearly real-time updates as witnesses are interviewed, evidence is uncovered, and grand juries indict ham sandwiches. Trump’s defense attorneys could even tell Whitaker what Mueller is and isn’t allowed to investigate.

And then there’s Congress: members of the House of Representatives spent months last summer demanding FBI records related to the Russia investigation. Rosenstein pushed back on those demands and ended up turning over a very narrow set of records to Congress. What if the Senate comes looking for more records tomorrow? Whitaker could say “sure thing! You want fries with that?”

Lastly, Special Counsels write a report on their findings at the end of their investigation, but the AG decides whether to publish that report or not. Nothing says the AG has to make that public, and nothing would trigger the libs harder than just sitting on a Mueller report.

There’s no end to the ways an AG hostile to the Mueller investigation could undermine it. Those are just the first few that come to mind. There’s a reason the president has been so apoplectic that Sessions and Rosenstein weren’t doing more to protect him: the Attorney General can do a lot to protect the president from investigations because the Attorney General supervises investigations.

the end?

Look, Mueller is no idiot. The reason he got hired in the first place was because Trump tried to shut the Russia investigation down by firing Comey. Mueller has to have known this was coming one day; in fact, we had a dress rehearsal in September.

Maybe he’s been filing sealed indictments in the weeks before the election, just in case his new boss was Matt Whitaker. Maybe he’s been handing off cases to regional US Attorney’s offices, like the Southern District of New York. (Those offices report to Mueller’s boss, too, so that might not protect an investigation Whitaker finds particularly inappropriate.) Maybe Mueller’s been referring cases to the New York State Attorney General.

Whatever the plan is, the fact that Mueller needs one right now means we’re in the middle of a slow motion constitutional crisis.