If new acting Attorney General Matt Whitaker is seeking to kill off special counsel Robert Mueller’s probe, he may try to do so not with a bang but a whimper.
Former federal prosecutors, defense attorneys and outside observers of Mueller’s investigation tell TPM that they believe the probe is more to vulnerable subtle attempts to influence or stymie it, rather than any dramatic action to remove the special counsel himself.
Sparking their concern is Whitaker’s record of criticizing Mueller as a pundit before joining the Justice Department. Whitaker, who served as then-Attorney General Jeff Sessions’ chief of staff, was seen by Trump as a loyalist, according to the New York Times. Two sources close to Whitaker told the Washington Post that is unlikely Whitaker will approve a subpoena of the President.
Randall Samborn, who served as a spokesman for Patrick Fitzgerald’s special counsel investigation into White House leaks of CIA agent Valerie Plame’s identity, said he was not surprised by Trump’s move to fire Sessions.
“What is unusual is the bypassing of a Senate-confirmed No. 2 official, in not elevating Rod Rosenstein to be acting attorney general,” Samborn told TPM, referring to the deputy attorney general who until Wednesday was overseeing Mueller, “but to insert someone who appears to have an agenda when it comes oversight of the Mueller investigation, and that’s extremely troubling for the Justice Department and for our justice system.”
The ways that Whitaker can quietly clamp down on Mueller’s inquiry range from starving its budget — an idea Whitaker already floated on television – to shaking up the personnel staffed to carry it out, to vetoing requests by the special counsel to issue subpoenas, pursue indictments, or open new lines of inquiry, according to outside legal experts.
“The problem is he can do all kinds of things that we would never know about,” Nick Akerman, a former prosecutor who worked on the Watergate investigation, said. “He could come up with all kinds of pre-textual reasons for why he wouldn’t approve an indictment.”
Where Whitaker may perhaps have the most opportunity, behind closed doors, to impede Mueller is when the time comes for the special counsel to present to the acting attorney general a report he’s said to be working on, that is likely to concern the President. Many believe that Rosenstein would have turned such a report over to Congress, which in turn could decide to make it public.
Whitaker could just “put it in a drawer and leave it there,” Patrick Cotter, a former prosecutor, told TPM.
“That’s when Whitaker has all the cards,” Cotter said. “And I think he has pretty almost unlimited power to do what he wants with that.”
While House Democrats may be able to subpoena any work product of Mueller’s they believe Whitaker is withholding, it’s an open question whether they’ll know what actions or materials to investigate if Whitaker’s hampering is done out of the public view.
“You would have to have something happen overtly that would cause them to subpoena Mueller’s investigative materials,” Akerman said, and House Democrats will also need to be wary of interfering with Mueller’s investigation themselves if they’re too aggressive.
Nevertheless, others were less convinced that Whitaker could hamstring the probe without anyone noticing. Defense attorney Shanlon Wu pointed out that Mueller has been outsourcing certain issues that have come up in his probe to U.S. attorneys and to other divisions of Main Justice.
“[Whitaker] certainly could have a huge affect, but it is not quite as easy as snapping your fingers either,” Wu said. (Wu, who briefly represented former Trump campaign aide Rick Gates, said that what he told TPM for this story had nothing to do with that representation, but his experience as a former prosecutor.)
Cotter said he believed that any steps to impede Mueller through staffing or budget decisions would be leaked — not by Mueller’s team — but by other Justice Department officials who’d be privy to those decisions.
“If, on Monday, Mueller finds that their budget has been cut to $8.58, I think it’s going to get out,” Cotter said.
Asha Rangappa, — a former FBI agent who interacted with Whitaker when they were both doing television punditry — pointed to regulatory requirements that Whitaker put in writing any decisions to deny steps Mueller wants to take. Such records could then be obtained by House Democrats once Mueller’s investigation is over.
“I don’t think he would be able to do it in secret,” she said. “We may not know it immediately.”
