Dems seek to defuse standoff over Whitaker subpoena

The Democratic chairman of the House Judiciary Committee said Thursday there would be “no need” for him to subpoena acting Attorney General Matthew Whitaker if he appears before the panel on Friday as planned and is prepared to respond to questions.

“If you appear before the Committee tomorrow morning and if you are prepared to respond to questions from our Members, then I assure you that there will be no need for the Committee to issue a subpoena on or before February 8,” Rep. Jerrold Nadler (D-N.Y.) wrote in a letter to Whitaker on Thursday evening.

“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,” Nadler added.

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The letter appeared to be an effort by Democrats to defuse a standoff with the top Justice Department official after his testimony was thrown into question earlier Thursday when the panel voted to authorize a subpoena in the event Whitaker declined to show up at the last minute. Whitaker had already agreed to testify voluntarily. 

It is unclear whether Nadler’s correspondence will be enough to guarantee Whitaker’s testimony before the committee on Friday. The Justice Department did not immediately return a request for comment.

The Democratic-led panel moved to authorize the subpoena in a party-line vote of 23-13 at a business meeting Thursday morning.

Nadler had said the threat of subpoena was necessary to ensure that Whitaker appeared and did not invoke executive privilege to decline answering certain questions.

Whitaker responded by saying that he would not testify unless Democrats withdrew the subpoena threat.

“When we invite officials to testify before this committee, they have to appear. When we ask them questions, they have to provide us with answers, or provide us with a valid and clearly articulated reason to withhold certain information,” Nadler said earlier Thursday.

“Without the threat of a subpoena, I believe it may be difficult to hold Mr. Whitaker to this standard,” he added.

Republicans cast the move as premature and a partisan stunt, while the acting attorney general also blasted it in a statement.

“Such unprecedented action breaches our prior agreement and circumvents the constitutionally required accommodation process,” Whitaker said. “Based upon today’s action, it is apparent that the Committee’s true intention is not to discuss the great work of the Department of Justice, but to create a public spectacle.”

Nadler sent a letter to Whitaker in January asking him to consult with the White House about a series of prepared questions to resolve any potential executive privilege issues ahead of the hearing.

In a follow-up letter sent Wednesday, Nadler noted he had not received a response as to whether any of the questions raised executive privilege concerns and that he expected full answers from the acting attorney general as a result.

“My understanding is that you will provide full and complete answers to these questions when they are asked at your hearing this Friday,” Nadler wrote.

However, the Justice Department on Thursday described the committee’s request as unprecedented and inconsistent with longstanding practice, noting officials typically make considerations of executive privilege during congressional oversight hearings and not beforehand.

“Doing it before the hearing is not the way the process works,” a senior Justice Department official told reporters. “It’s an extraordinary ask of the committee.”

“We’re not going to go there under the threat of a subpoena,” the official added.

Assistant Attorney General Stephen Boyd also sent a five-page letter to Nadler on Thursday noting Whitaker would not go into detail about his communications with President TrumpDonald John TrumpTrump calls Sri Lankan prime minister following church bombings Ex-Trump lawyer: Mueller knew Trump had to call investigation a 'witch hunt' for 'political reasons' The biggest challenge from the Mueller Report depends on the vigilance of everyone MORE during the hearing.

“Rather than conducting appropriate oversight into the Department’s programs and activities, the Committee evidently seeks to ask questions about confidential presidential communications that no Attorney General could ever be expected to disclose under the circumstances,” Boyd wrote.

“The President has a constitutionally grounded interest in being able to engage in confidential communications with his senior advisers,” he added.

The White House separately issued a statement arguing that the Democratic chairman "should focus on helping the American people, rather than wasting time playing pointless political games.”

“The fact Chairman Nadler would try to force the public disclosure of private conversations that he knows are protected by law proves he only wants to play politics," White House press secretary Sarah Huckabee Sanders said in the statement.

Friday’s hearing — if it still happens — promises to generate headlines. It will be one of the first major public confrontations between a top Trump administration official and House Democrats after they captured the majority in the lower chamber — and the oversight powers that come with it — in the November elections.

Whitaker is expected to face questions about his oversight of special counsel Robert MuellerRobert (Bob) Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s Russia investigation, of which he was critical before being tapped for a role at the Justice Department. He is also expected to be grilled about his communications with the president and other White House officials regarding the investigation.

Whitaker has emerged as a controversial figure since Trump tapped him to lead the Justice Department following Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsAnd the winner of the Robert Mueller Sweepstakes is — Vladimir Putin The Memo: Mueller's depictions will fuel Trump angst Collins: Mueller report includes 'an unflattering portrayal' of Trump MORE’s ouster the day after the midterms.

Whitaker is a political ally of Trump who was publicly critical of the Mueller probe before joining the administration. Democrats and other critics of the president raised concerns he could look to impede or thwart Mueller’s investigation into links between the Trump campaign and the Russian government.

However, Whitaker’s days at the helm of the Justice Department are numbered. The Senate Judiciary Committee on Thursday voted to advance the nomination of William Barr, the president’s attorney general nominee, teeing up a confirmation vote before the full Senate as early as next week.