WASHINGTON ― President Donald Trump’s dismissal of former Attorney General Jeff Sessions on Wednesday, less than 24 hours after Democrats won control of the House, sets up a potential constitutional showdown over Robert Mueller’s special counsel investigation examining Russian interference in the 2016 election.
Sessions, an early Trump supporter who came under sustained and withering criticism from the president for recusing himself from overseeing the Russia investigation, departed the Justice Department in darkness Wednesday evening. Dozens of Justice Department employees looked on and applauded as Sessions shook hands with Acting Attorney General Matt Whitaker (his former chief of staff), Deputy Attorney General Rod Rosenstein, Solicitor General Noel Francisco and Civil Division chief and former chief of staff Jody Hunt before boarding a black SUV in the courtyard of the Robert F. Kennedy Building.
Democrats were certainly not fans of Sessions, a hard-line opponent of illegal immigration who rolled back enforcement of civil rights laws and tossed out Obama-era sentencing reforms. But they see Sessions’ ouster as yet another instance of Trump seeking to interfere with the Mueller probe, which has already resulted in the convictions of several Trump aides and the indictments of scores of Russian actors for their efforts to boost Trump’s candidacy. And now, in the 116th U.S. Congress, they’ll control the House gavels.
“The firing of Jeff Sessions will be investigated and people will be held accountable,” Rep. Jerrold Nadler (D-N.Y.), the ranking member of the House Judiciary Committee, said in a statement. “This must begin immediately, and if not, then a Democratic Congress will make this a priority in January.”
“President Trump waited until just hours after the midterm elections to make this move, which had been rumored for months,” said Rep. Elijah Cummings (D-Md.), the ranking member of the House Oversight Committee. “Congress must now investigate the real reason for this termination, confirm that Acting Attorney General Matthew Whitaker is recused from all aspects of the Special Counsel’s probe, and ensure that the Department of Justice safeguards the integrity of the Mueller investigation.”
Democrats Question Whitaker’s Role
Whitaker, who was able to assume the acting attorney general position because Sessions resigned instead of being fired, has enjoyed a meteoric rise since he was hired as Sessions’ chief of staff last year. After serving as a U.S. attorney in Iowa, Whitaker unsuccessfully ran for Senate and then became a commentator on CNN and ran a conservative ethics watchdog group called the Foundation for Accountability and Civic Trust. He’s said that Rosenstein, who oversees the Russia probe and is now Whitaker’s deputy, should’ve ordered Mueller to “limit the scope of his investigation,” and he warned that the special counsel was “going too far” and could be turning his investigation into “a witch hunt.”
Cummings and other Democrats have called on Whitaker to recuse himself from the Mueller probe, given his prior commentary on the investigation as well as his ties to Sam Clovis, a witness in the Mueller investigation. Whitaker, in a statement Wednesday night, said he was “committed to leading a fair Department with the highest ethical standards.” The Justice Department has not said whether he’ll comply with the decision of career ethics officials who will examine whether there’s a need for him to recuse himself.
It’s unclear if Trump wants Whitaker to take on the position permanently or if he’ll nominate a replacement. But, given what happened with Sessions, it seems unlikely Whitaker would agree to recuse himself from the Mueller probe.
Oversight Will Have To Wait A Few Months
It’s unlikely that Republicans will agree to any form of oversight of the special counsel until Democrats take control of the House in January. When they do, it will mark a new era for the Trump administration, which hasn’t faced any real congressional scrutiny since Trump took office in 2017. Republicans such as Rep. Devin Nunes (R-Calif.) have instead sought to protect the White House’s interests and to undermine the special counsel investigation.
When Democrats do take over Congress, one key document they’ll be interested in is the final report on Mueller’s investigation. Mueller is a by-the-books guy, and few expect him to break with Justice Department precedent and attempt to indict Trump. What’s more likely is that Mueller’s team will prepare a report outlining the evidence gathered about Trump, including the question of whether Trump’s firing of former FBI Director James Comey or other attempts to intervene in the Mueller probe amounted to obstruction of justice.
But where that report ultimately ends up is unclear. There’s no guarantee that Mueller and Rosenstein will send the report to Capitol Hill. Rudy Giuliani ― Trump’s attorney/television surrogate ― has said they’d attempt to block the release of any Mueller report, though experts have said it’s unclear that the executive branch could actually claim privilege over the document. Whitaker, who has written about the ways a new attorney general could rein in the Mueller probe, could try to keep the document out of Congress’ hands.
Subpoena Enforcement Could Lead To Court Battles
Overall, it’s safe to expect more pressure on the Trump administration. It largely ignored requests from Democrats when they were in the House minority, but now the Democrats will have subpoena power. (One complicating factor: They have to rely upon the administration-controlled Justice Department to enforce such a subpoena.) There could be lengthy legal battles over which documents Congress is entitled to and which ones the Trump administration can keep secret. And the increased pressure from Capitol Hill will come at a time when a number of prominent legal roles in the administration are empty.
Rep. Adam Schiff, the Democratic ranking member of the House Intelligence Committee, said last month that the panel would investigate Russian money-laundering and Trump’s business dealings. In a Washington Post op-ed, Schiff said that Democrats will need to “ruthlessly prioritize the most important matters first,” which he said included examining allegations that the Russians have financial leverage over Trump.
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