The Mueller Investigation May Be Safe Despite Matt Whitaker
Credit to Author: Garrett M. Graff| Date: Wed, 14 Nov 2018 17:10:35 +0000
The days since the midterms have been filled with developments in the probe of special counsel Robert Mueller, whose weeks of public silence leading up to the election belie a frenzy of activity, grand jury meetings, and investigative steps that his probe has pursued.
The next shoes to drop seem likely clear: GOP operative Roger Stone has long suspected he'll be indicted. Stone ally Jerome Corsi suggested in a recent YouTube livestream that he may face charges as well. Even Donald Trump's son, Donald Jr., has reportedly discussed with friends the possibility of his own indictment. At the same time, the forced resignation of attorney general Jeff Sessions, and appointment of his chief of staff Matt Whitaker to be the acting attorney general—a decision that is of at least debatable legality—has raised fears that the Trump administration is closing in on firing Mueller himself.
Yet as the dust settles from the midterms and Sessions’ abrupt departure, there are five clear reasons to be optimistic that the rule of law will hold, and that Mueller will be able to complete his probe, regardless of what he ultimately finds. But there’s also one clear reason to be pessimistic.
First, the reasons for optimism:
1. The investigation is quite far along. Mueller’s team has been working at breathtaking speed for a federal investigation. In a little over a year, he’s brought numerous charges, won cooperation and guilty pleas from numerous high-profile figures, and been victorious in the one case that went to trial. He’s likely known where his investigation will lead for months, and has a clear set of targets in his sights. While court cases and filings might continue for years to come in some of the prosecutions, Mueller has always known that his investigation wasn’t meant to last forever. There are plenty of signs that we’re closer to the denouement of the Russia probe than to its beginning.
2. It’s not like any of this took Mueller off guard. There’s no scenario where Bob Mueller awoke last Wednesday, saw the news of Sessions’ firing and Whitaker’s appointment, and was surprised. Rumors had swirled since the summer that Jeff Sessions would depart—voluntarily or not—right after the midterms. Matt Whitaker’s name had even been floated in September as a possible replacement for deputy attorney general Rod Rosenstein in overseeing the probe. More broadly, Mueller has lived for 16 months with the knowledge that he might be fired at almost any minute by an impulsive, capricious president who has made no secret of his fear and dislike of the investigation. Mueller knows that Trump has already tried to fire him, and that the person who stopped those previous firing fits—then-White House counsel Don McGahn—is now gone.
What Mueller’s “Doomsday plans” might be, we don’t know—but it would be prosecutorial malpractice for Mueller’s team not to have made careful preparations for what happens immediately in the hours after he’s fired or the investigation is blocked. The plans could involve already sealed indictments, court battles challenging his firing, a pre-written report to Congress, or any other manner of ready-to-execute paperwork or public campaign.
3. There are lots of pieces of the case scattered across the US government. The “Mueller probe,” as we short-hand it publicly, is increasingly no longer tied to Mueller himself. Parts of the investigation have been picked up by multiple US attorney offices, and some of the most active work—the investigation growing out of Trump fixer Michael Cohen’s guilty plea to campaign finance violations—is completely separate, being run by the Southern District of New York prosecutors in Manhattan. This arm of the case, in fact, is the only one that has actually named Donald Trump himself in court documents, alleging that Cohen was acting under the orders of “Individual-1,” a thin pseudonym for Trump himself, given that the court documents make clear that “Individual-1” became president of the United States in January 2017.
Shutting down the entire probe and its various related angles would not be as simple as axing Mueller. As former SDNY head Preet Bharara tweeted in August, “Practice note: Trump has no effective way to shut down any investigation being conducted by SDNY. That office is more insulated, enduring and ‘sovereign’ than the Special Counsel’s Office. You can fire Mueller. You can fire the US Attorney. You can’t fire the SDNY.” Any attempt by Whitaker to reach down into the Southern District and stymie the Cohen probe would further the public controversy and, if pushed, almost assuredly lead to the resignation of career federal prosecutors angered by the move.
Similarly, just as FBI investigations require a formal procedure to open, the require a formal procedure to close. Should Mueller himself be removed from the probe and the special counsel’s office shuttered, much of the work underway by FBI agents and prosecutors on the case would likely just continue without him.
4. The Justice Department runs on norms. Even if Whitaker arrived in the top role at the Justice Department with ill intentions, he’s now locked in a bureaucracy with a strong culture, guidelines, and regulations that may circumscribe his actions. Much of the fear that Whitaker would seek to stymie, block, or shutter the Mueller stems from his public writings and comments on the case. He has criticized the probe, argued it should be limited in scope, and is close friends to Sam Clovis, a figure so closely tied to the probe that it torpedoed his nomination to a top Agriculture Department job last year.
Under normal circumstances, that apparent conflict of interest would likely force him to recuse from supervising Mueller’s probe, returning the role to Rod Rosenstein. That precise scenario of an apparent conflict, after all, is what forced Sessions himself to give up the role, hand it to Rosenstein, and draw endless ire from Trump himself.
The first test of Whitaker’s behavior and intentions was whether he would forge ahead overseeing the probe or seek approval from ethics attorneys to do so first. The good news: Whitaker opted for the latter. Word came this week that Whitaker would seek an opinion from career Justice Department ethics attorneys about whether it was appropriate for him to supervise the probe. “Acting Attorney General Matt Whitaker is fully committed to following all appropriate processes and procedures at the Department of Justice, including consulting with senior ethics officials on his oversight responsibilities and matters that may warrant recusal,” a Justice Department spokesperson said Monday.
What advice those ethics attorneys might give, and whether Whitaker will follow it, remains to be seen. But that he's at least soliciting their opinion is a promising start.
5. Congress has leverage. The fact that Democrats have retaken the House of Representatives, a role that gives them subpoena power, will surely restart Congress’ stalled oversight system. The Republican-led Congress has all but abdicated serious oversight of the executive branch over the last two years, a critical part of the checks and balances established under the American rule of law.
Should Whitaker or the Trump administration seek to block or remove Mueller in any way, the legislative branch would surely get involved. Under the regulations of the special counsel office, in fact, any dispute that might arise between Mueller and Whitaker would have to be reported to Congress, a moment that would surely launch hearings, subpoenas, and all manner of public frenzy.
All of that said, there’s one overarching reason for pessimism that Mueller’s probe will be allowed to complete its work at its own pace: There’s no clear justification for Whitaker’s appointment other than shutting down Mueller’s probe.
The Justice Department has a clear line of succession in the absence of a Senate-confirmed attorney general, and there’s no apparent emergency or exigent circumstances that would prohibit any of those officials from serving in the role. Whitaker’s leap from the chief-of-staff role to acting attorney general is unprecedented, especially given that Rod Rosenstein, the deputy attorney general, is perfectly capable of leading the department—and there are all manner of Senate-confirmed Justice Department officials ready to step in if something were to happen to Rosenstein. The seemingly out-of-left-field appointment only makes sense if it was made because Whitaker has publicly questioned the Mueller investigation.
What we do know is that Mueller’s not wasting any time: His team was hard at work on Veterans’ Day Monday—at least eight of his prosecutors showed up at the office. His grand jury will likely next meet in just 48 hours.
Garrett M. Graff (@vermontgmg) is a contributing editor for WIRED and the co-author of Dawn of the Code War: America's Battle Against Russia, China, and the Rising Global Cyber Threat. He can be reached at garrett.graff@gmail.com.