First, and perhaps counterintuitively, we can expect a period of calm. Whitaker’s first move as acting attorney general is unlikely to be firing the special counsel. Indeed, we might actually hope that Whitaker proceeds cautiously and with some sense of history—loyalist though he may be, he likely does not want to be remembered as the second coming of Robert Bork, who is known for his role as the executioner in Richard Nixon’s Saturday Night Massacre. And given that there are doubts as to the constitutionality of his appointment, Whitaker will be wise to act with prudence.
More important, as a matter of strategy, Mueller has no reason to precipitate a crisis. As in all matters of high political moment, the ultimate battle will play out in the court of public opinion and in the halls of Congress—and Mueller knows he will be better positioned if Whitaker fires, in effect, the first shot.
Second, when and if Whitaker acts, he is unlikely to do so in an overt or politically aggressive way. There are many steps far short of shutting down the investigation that he can take to hamper Mueller’s efforts. Imagine, if you will, that Whitaker simply transfers some of the assigned FBI agents to other, “more important” tasks, or that he rejects a request from Mueller to investigate a particular area of inquiry. Those concerned with the integrity of the investigation need to be on guard for these types of more subtle obstructions, which are far more plausible than grosser efforts.
Read: What Sessions’s resignation means for Robert Mueller
Third, we should pay close attention to congressional reaction, especially in the Republican Senate. Trump was no doubt emboldened by his belief that the Republican gains in the Senate insulate him from scrutiny. We will see if that is so.
Recall that Senator Lindsey Graham once said there would be “hell to pay” if Sessions were fired. And he also pledged solemnly that he would do everything in his power to ensure that the Mueller investigation is not interfered with. Now is the time when Graham’s bona fides, and those of his colleagues, will be tested. If congressional Republicans are truly serious, they should, for example, take up the bipartisan proposal to limit the president’s removal powers for a special counsel.
And finally, we should remember that the Mueller investigation is not the be-all and end-all of the criminal-investigative universe. By now, it is well known that large fractions of the investigation have been hived off to traditional offices of the Department of Justice—places like the U.S. Attorney’s Office in the Southern District of New York and the Eastern District of Virginia. Whatever bureaucratic games Whitaker might be able to play with the special-purpose Mueller investigation are much less effective when applied to preexisting federal offices.