ANALYSIS — The Trump administration on Thursday moved its first chess piece in what is expected to be a contentious match between the White House and House Democrats as the latter seek documents and testimony for their oversight investigations of the president and his Cabinet.
In a letter to House Judiciary Chairman Jerrold Nadler on Thursday, acting Attorney General Matthew Whitaker said he would bail on his scheduled hearing on Friday unless Nadler assured him he would not file a subpoena to compel Whitaker to disclose his conversations with the president on hot-button topics or force Whitaker to invoke “executive privilege.”
In another letter to the committee sent later in the day, Assistant Attorney General Stephen Boyd set a 6 p.m. Thursday deadline for Nadler to notify the Justice Department whether or not he would file that subpoena, which the committee authorized as a pre-emptive measure on a party-line vote earlier in the day.
As long as Whitaker is prepared to answer questions, “then I assure you that there will be no need for the Committee to issue a subpoena” on Friday, Nadler wrote in response.
“To the extent that you believe you are unable to fully respond to any specific question, we are prepared to handle your concerns on a case-by-case basis, both during and after tomorrow’s hearing,” the New York Democrat wrote.
Whitaker and Boyd’s letters Thursday are early indicators that the president’s legal team will take an aggressive approach to stall the disclosure of conversations between Trump and his advisers to House investigators.
The questions Democrats want to ask Whitaker — outlined in a Jan. 22 letter to which the AG did not respond until Thursday — fall under “a category of communications that Administrations of both parties have viewed as raising confidentiality interests that are vital to a President’s ability to discharge the responsibilities of his office,” Whitaker wrote in his letter.
Essentially, the argument for executive privilege goes, the president’s conversations with his advisers must remain confidential so that they can feel comfortable giving him candid advice.
Democratic investigators can challenge executive privilege and compel disclosure by taking subpoenas and document requests to the courts. The U.S. Court of Appeals for the District of Columbia Circuit that rules on questions of executive privilege has historically tended to side with investigators over the president.
But that litigation process takes months. House Democrats only have two years of a guaranteed majority with which to investigate the administration.
By arming themselves with a pre-emptive subpoena to dangle over Whitaker’s head on Friday during his voluntary testimony, the committee’s Democrats had hoped to expedite disclosure of his conversations with Trump.
Whitaker is not budging for now, though.
Nadler, Whitaker wrote in his letter Thursday, has “deviated from historic practice and protocol and taken the unnecessary and premature step of authorizing a subpoena” before the attorney general opted to decline to answer their questions in a voluntary appearance.
That is true.
In most cases, Congress and the administration have first negotiated over the disclosure of presidential communications after a witness initially declined to testify about them in a voluntary hearing. If those negotiations failed, Congress then issued a subpoena for the requested information. And in cases in which the administration rejected the subpoena, the president finally invoked executive privilege, setting up a battle in D.C. Circuit court over whether or not the information was protected.
In 2004, the Supreme Court urged Congress and the executive branch to settle their disclosure disputes out of court.
House Judiciary Republicans tried to block the Democrats’ subpoena authorization, citing its unprecedented nature.
“Chairman Nadler and Democrats overplayed their hand,” ranking member Doug Collins of Georgia said. “In a quest to score political points against the president, they authorized a pre-emptive subpoena, treating a voluntary witness as hostile.”
But Trump has openly attacked Democrats for their plans to conduct constitutionally mandated oversight of his administration, Democrats have been quick to point out, citing his State of the Union speech. Plus, they gave Whitaker two weeks’ notice to consult with Trump’s legal team on whether or not he would invoke executive privilege on his conversations with the president.
Whitaker did not respond to that Jan. 22 notice until Thursday, well past Nadler’s 48-hour deadline before the scheduled hearing. And when he did respond, his letter indicated strongly that he would not disclose anything about what he and the president have talked about.
Nadler is seeking answers about “confidential presidential communications no Attorney General could ever be expected to disclose under the circumstances,” Whitaker wrote in his letter Thursday.
Whitaker’s first testimony in front of the committee is scheduled for Friday at 9:30 a.m. in the Rayburn House Office Building.
DNC chairman: Sessions firing ‘in some ways worse than Saturday Night Massacre’