This article is from the source 'nytimes' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.

You can find the current article at its original source at https://www.nytimes.com/2019/02/07/us/politics/matthew-whitaker-subpoena-congress.html

The article has changed 7 times. There is an RSS feed of changes available.

Version 1 Version 2
Matthew Whitaker Says He Will Not Testify Until Subpoena Threat Is Removed by House Panel Matthew Whitaker Says He Won’t Testify Until House Panel Removes Subpoena Threat
(35 minutes later)
WASHINGTON — The acting attorney general, Matthew G. Whitaker, told lawmakers on Thursday that he would not testify before the House Judiciary Committee on Friday as scheduled without a written assurance that lawmakers would not issue a subpoena for his testimony during the hearing. WASHINGTON — The acting attorney general, Matthew G. Whitaker, told lawmakers on Thursday that he would not testify before the House Judiciary Committee as scheduled on Friday without a written assurance that they would not issue a subpoena for his testimony during the hearing.
On Thursday morning, the committee voted to give its chairman, Representative Jerrold Nadler of New York, the authority to subpoena Mr. Whitaker if he did not answer questions during the hearing or if he chose not to show up. The jostling called into doubt whether Mr. Whitaker — installed by President Trump in November after he ousted Attorney General Jeff Sessions the day after the midterm elections — will appear as planned before the committee. Some Democrats consider Mr. Whitaker’s appointment to be illegitimate.
The subpoena was approved along party lines. The latest turn in the political drama started on Thursday morning, when the committee voted to give its chairman, Representative Jerrold Nadler, Democrat of New York, the authority to subpoena Mr. Whitaker if he did not answer questions during the hearing or if he chose not to show up.
“I hope not to have to use the subpoena,” Mr. Nadler, a Democrat, said Thursday. “Unfortunately a series of troubling events over the last few months suggest that we should be prepared.” Democrats want to ask Mr. Whitaker about matters related to the Russia investigation led by the special counsel, Robert S. Mueller III, and whether Mr. Trump replaced Mr. Sessions with Mr. Whitaker in order to interfere with that inquiry.
“I hope not to have to use the subpoena,” Mr. Nadler said on Thursday. “Unfortunately, a series of troubling events over the last few months suggest that we should be prepared.”
While Mr. Whitaker had agreed to testify voluntarily, the potential that Mr. Nadler could subpoena him in the middle of the hearing was essentially a threat to initiate contempt-of-Congress proceedings if Mr. Whitaker refused to answer questions without a legal right to balk.
But on Thursday afternoon, the Justice Department sent Mr. Nadler a letter demanding that he not use that power during the hearing.
“We seek a written assurance from your office that the committee will not issue a subpoena to the acting attorney general on or before Feb. 8, and that the committee will engage in good-faith negotiations with the department before issuing such a subpoena,” the Justice Department wrote.
The letter has raised the possibility that Mr. Whitaker may not testify before William P. Barr is confirmed as the next attorney general. The Senate Judiciary Committee voted along party lines on Thursday to send Mr. Barr’s nomination to the full Senate.
During the first two years of the Trump administration, when Democrats were in the minority, they bristled when officials like Mr. Sessions refused to answer their questions about communications with the president on the grounds that Mr. Trump might, in the future, want to invoke executive privilege over them — even though Mr. Trump never actually did so.
Executive privilege is a power presidents have claimed under the Constitution to prevent Congress from gaining access to internal executive branch information, like confidential communications between the president and his advisers. But such information is not legally shielded from Congress by default; rather, the president is supposed to choose whether to invoke executive privilege in any particular instance — at the cost of accepting any political fire for keeping that thing secret.
With Democrats now in control of the House, Mr. Nadler is trying to avoid such stonewalling.
On Jan. 22, he sent Mr. Whitaker a letter outlining questions Democrats might ask him about his conversations with Mr. Trump and asked him to consult the White House ahead of time about whether Mr. Trump would invoke the privilege over them. Absent such an invocation, Mr. Nadler wrote that the committee would otherwise expect answers at the hearing.
If a witness refuses to answer a question during a congressional hearing without a legal right to do so, the House can vote to hold him in contempt. Congress can then ask the Justice Department to prosecute him or file a lawsuit asking a judge to order the witness to provide the information, raising the further possibility of being imprisoned for contempt of court. But a valid assertion of executive privilege would provide a lawful basis for declining to answer.
But the Justice Department has long considered a subpoena to be a necessary precursor to Congress holding an executive branch official in contempt. Its letter to Mr. Nadler demanding that he agree not to issue the subpoena during the hearing, therefore, amounted to a demand that he not initiate contempt proceedings against Mr. Whitaker during the hearing and instead commit to negotiating over any disputed information afterward, once any questions have actually been asked.
“We cannot understand this measure other than as an attempt to circumvent the constitutionally required accommodation process and thereby to transform the hearing into a public spectacle,” the department’s letter said.
The letter also noted that previous executive branch officials of both parties have declined to answer questions that might be subject to executive privilege, and cited a 1982 Reagan administration policy instructing officials asked by lawmakers about information that might be subject to the privilege to hold the request pending a final determination. Still, those precedents did not address a situation in which the White House has advance notice about what will be asked.
At the committee meeting earlier on Thursday, the approval to give Mr. Nadler the authority to issue the subpoena fell along party lines.
Representative Doug Collins of Georgia, the committee’s ranking Republican, called the subpoena “political theater.” In a statement, Mr. Whitaker agreed.Representative Doug Collins of Georgia, the committee’s ranking Republican, called the subpoena “political theater.” In a statement, Mr. Whitaker agreed.
“The committee now has deviated from historic practice and protocol and taken the unnecessary and premature step of authorizing a subpoena to me,” Mr. Whitaker said, adding: “Political theater is not the purpose of an oversight hearing, and I will not allow that to be the case.” “The committee now has deviated from historic practice and protocol and taken the unnecessary and premature step of authorizing a subpoena to me,” Mr. Whitaker said, adding, “Political theater is not the purpose of an oversight hearing, and I will not allow that to be the case.”
And the Justice Department balked.
“We seek a written assurance from your office that the committee will not issue a subpoena to the acting attorney general on or before February 8, and that the committee will engage in good faith negotiations with the department before issuing such a subpoena,” the Justice Department wrote in a letter to Mr. Nadler.
Democrats want to ask Mr. Whitaker about matters related to the Russia investigation led by special counsel Robert S. Mueller III, and whether President Trump replaced his previous attorney general, Jeff Sessions, with Mr. Whitaker in order to interfere with that inquiry.
The letter to the committee has raised the possibility that Mr. Whitaker will refuse to attend the hearing, and not testify before William P. Barr is confirmed as the next attorney general. The Senate Judiciary Committee voted Thursday along party lines to send Mr. Barr’s confirmation to the full Senate.