At the end of last month, with the midterms looming, I gave a talk before a small private audience in California in which I argued for optimism because—among other things—the moment for firing Robert Mueller had passed.
Eighteen months ago, I said, President Donald Trump had an opportunity to disrupt the Russia investigation: He had fired the FBI director and had rocked the Justice Department back on its heels. But Trump had dithered. He had broadcast his intentions too many times. And in the meantime, Mueller had moved decisively, securing important indictments and convictions, and making whatever preparations were necessary for hostile fire. And now Democrats were poised to take the House of Representatives. The window of opportunity was gone.
In the 48 hours since Trump fired Jeff Sessions and installed Matthew Whitaker as acting attorney general, I have had occasion to wonder whether I was being overly optimistic a week ago. Whitaker is the kind of bad dream from which career Justice Department officials wake up at night in cold sweats. He’s openly political. The president is confident in his loyalty and that he won’t recuse himself from the investigation—notwithstanding his public statements about it and his having chaired the campaign of one of the grand-jury witnesses. There are legal questions about his installation at the department’s helm. And he’s known as the White House’s eyes and ears at Justice.
It’s bad—very bad.
All of which leads Philip Lacovara, who served in the Watergate special prosecutor’s office, to conclude that it was Mueller, not Trump, who missed his moment. Writing in The Washington Post, Lacovara worries that “by waiting until after the midterms to issue his final report about President Trump’s possible culpability, Mueller has effectively missed his market and may have doomed the investigation.” With Sessions gone and the deputy attorney general, Rod Rosenstein, no longer in charge of the investigation, Lacovara writes:
The new attorney general, whether it is Whitaker or someone else, will be free to constrain Mueller’s investigation and suppress the special counsel’s findings: Any report by Mueller must go to the attorney general, who decides what, if anything, to do with it. Sessions’s replacement will be far more comfortable suppressing the report now that firmer Republican control of the Senate protects not only Trump but also the new attorney general from any risk of being ousted in a post-impeachment trial.
Democrats have much to celebrate about the midterms, but their elation should be tempered by the realization that the election also may have spelled the end for Mueller’s Russia investigation, which was too long in getting to the punch line.
Leave aside for now the question of whether Lacovara’s critique is fair to Mueller. To assess, after all, whether Mueller should have moved faster, one would have to know more about the state of his investigation than I, at least, know. Lacovara is certainly correct about one big thing: The prospects for interference with the Mueller investigation went up dramatically with Whitaker’s appointment.
Yet, that said, I stand by my conclusion. I am still, if only tentatively, of the belief that the prospects for interference are dimmer than fear and panic and another Trump-busted norm have us imagining. Here are 10 reasons to think that Whitaker may have less capacity to foil Mueller than the current moment—and his formal powers—may suggest.
First, Mueller has spread the wealth around. The normal critique of special-counsel investigations is that they hoard jurisdiction, endlessly expand, and become personal roving inquests into their political subjects’ lives. The opposite is the case with Mueller. He has not merely referred to other Justice Department components matters at the margins of his investigation, such as the Michael Cohen situation in New York. He has also let other components handle matters involving core questions of Russian interference in the U.S. elections, such as the Maria Butina and Elena Khusyaynova prosecutions. The result of this strategic step is not just that Mueller is relatively invulnerable to the charge of any kind of power grab or mission creep. It is also that firing him or reining him in only does so much. If Trump imagines these investigations as a cancer on his presidency, they are a cancer that has already metastasized.
Second, the investigation has already progressed very far. It is one thing to squelch an investigation in its crib. It’s another thing to squelch an investigation that has already collected important evidence and brought key cases. The effort to do so cannot take place invisibly, as a great many prosecutors and FBI agents will be aware of what is happening. None of them has to leak anything for that awareness to find its way to Capitol Hill, because the Hill is already aware of the problem and looking for signs. Mueller is by many accounts writing a report, a step that signals a completed investigation or a completed portion of an investigation. The effort to suppress that report could be politically galvanizing and, in its own way, as damaging for the administration as the contents of that report when they eventually become public.
Third, Mueller does not have to remain silent. Mueller has used silence as a powerful strategic instrument throughout his investigation. He has done this for a variety of reasons, and the silence has served him well. Among other things, it has given his voice, if and when he ever chooses to use it, enormous moral and political power. The day that Mueller holds a press conference or stands before cameras and declares that his investigation is facing interference from the Justice Department will be a very big day, perhaps a game-changing day. If the department suppresses his report, he has the capacity to, as James Comey did after his firing, testify before Congress about what happened. Mueller has not hoarded power or jurisdiction, but he has hoarded moral authority. If Whitaker or his successor seeks to frustrate the probe, Mueller can spend down those huge reserves of credibility.
Fourth, the midterms matter—and they mean investigations. Squelching a high-profile, politically explosive investigation of the president is hard enough in this country under any circumstances. When the opposition party controls powerful congressional committees and is committed to oversight, it’s that much harder. The Democratic takeover of Congress means that key committees will be watching every move Whitaker and his successor make with respect to the investigation. It means subpoenas for any report they may try to suppress. It means an open and receptive forum for Mueller to testify should he have something to say. It means constant investigation. And it means that the threat of impeachment hangs over everything. This is a very big change, and Mueller is as aware of it as anyone. As a result of Democratic control of the House, he could, for example, write an unclassified summary of his report and conclusions with every expectation that major congressional committees would demand it and release it publicly. He could also, say, write an impeachment referral—if he thought he had evidence Congress needs to see—and dare Whitaker to prevent its transmission to Congress. If Whitaker were to do so, Mueller could resign and announce what happened and let Congress do the rest. Having Democrats in control of the House matters enormously.
Fifth, the confirmation process for the attorney general still matters. Whitaker is ultimately a placeholder. He can do damage while in office, but ultimately the president is going to have to name an attorney general, and the Senate is going to have to confirm that person. That means two big things: Trump has to name someone who can win confirmation, and the nominee has to personally face the Senate Judiciary Committee. The midterms strengthened the president’s hand in the Senate, both by increasing the Republican caucus and as a consequence of the departure of Republicans such as Jeff Flake and Bob Corker, who might have been expected to take a stand against an unacceptable nominee. But there are still senators who might well draw some lines. And that has mattered in the past. The reason Chris Wray, and not someone wholly unacceptable for the role, is FBI director today is that confirmability required it. Moreover, the confirmation process offers a genuine and meaningful opportunity for senators to force a nominee publicly and under oath to commit himself or herself to supervising the investigation in a nonpolitical manner. These things matter. During Watergate, Elliot Richardson resigned as attorney general, rather than firing Archibald Cox, precisely because he had given the Senate his word that he would protect the special prosecutor.
Sixth, corrupting the Justice Department is harder than you think. Trump has tried very hard. He openly declares his ambition that the department’s function should be to protect him and prosecute his enemies. And yet the norms and traditions of the department have proved uncommonly robust and sticky and have frustrated him at every turn. Yes, cultures can be corrupted. And we should certainly worry that Whitaker comes into the department’s leadership in service of Trump’s declared goal of corrupting its culture. But don’t underestimate the difficulty of the project, particularly with Congress watching and journalists making the rounds every day. The culture has defended itself remarkably ably so far and will continue to do so.
Seventh, senior Justice Department officials, both career and political, can draw lines. This point is closely related to the previous one, but also distinct. One indication that the system has held so far is that we have not seen mass resignations or resignations in protest over matters of principle. That will change if Whitaker or his successor moves against the investigation in a fashion that officials regard as unacceptable. Rosenstein, for example, has assiduously defended and protected the Mueller investigation, staking his personal credibility on the endeavor. Will he and Wray, who has to think about how the FBI rank and file will react to his sitting on his heels while a major FBI investigation is buried, really do nothing if Whitaker impedes Mueller? Even if they are inclined to passivity, the norms and expectations of the department will demand more of them, particularly if underlings threaten to resign if they do not act.
Eighth, Whitaker will get briefed and assume responsibility for the department. It may sound naive to say that this will matter, but let’s at least consider the possibility that it will matter. It is one thing to spout off #MAGA nonsense about Mueller on CNN while you’re a private citizen. But Whitaker, assuming he does not recuse himself, will now get briefed on the actual Mueller investigation, having taken an oath of office to preserve and protect the Constitution. Let’s assume for a moment that Mueller will have compelling facts and his briefing will be impressive. It would be hard to look Bob Mueller in the face, discussing his actual investigation with the facts and legal theories squarely on the table, and then carry water for a subject of that investigation. If Whitaker does this, the nakedness of it will be transparent to all involved and trigger some of the cultural and normative reactions described in the previous two points. It’s also possible—if unlikely, given Whitaker’s background—that Whitaker will actually be moved by reality when confronted with it. Moreover, the norms and history of the Justice Department are extremely powerful and act upon those who show up. Think of Sessions, a political animal who got confirmed and then immediately recused himself on the advice of career officials. Perhaps Whitaker will defy all of this, but it’s not an easy thing to do—and if Whitaker does it, he will do it knowing that he will go down in history as a John Mitchell figure. That should at least be food for thought on his part.
Ninth, the public actually cares. Thursday evening, tens of thousands of people around the country protested Trump’s move against Sessions. That’s before Whitaker actually does anything. People around the country care a great deal about protecting Mueller, about learning the truth about Russian intervention in our elections, and about Trump’s abuses of power. Expect political pressures to grow proportionately to the increased threat to accountability. This public vigilance and anger is not just #resistance noise; it’s actively useful.
Finally, 10th, these points all work in tandem with one another. They are not discrete. They operate in an ineffable combination of bureaucratic maneuvering, congressional action, journalism, personality, and public pressure. And in this dangerous moment—and Whitaker’s installation does create a profoundly dangerous moment—the combined effects here will be a powerful defense against misdeeds.
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