Whitaker’s post provides ample tools to disrupt Mueller probe

Matthew Whitaker doesn’t have to fire Robert MuellerRobert (Bob) Swan MuellerTop Republican considered Mueller subpoena to box in Democrats Kamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Dem committees win new powers to investigate Trump MORE to throw a wrench in the special counsel’s investigation.

Much of the focus on President TrumpDonald John TrumpAmash responds to 'Send her back' chants at Trump rally: 'This is how history's worst episodes begin' McConnell: Trump 'on to something' with attacks on Dem congresswomen Trump blasts 'corrupt' Puerto Rico's leaders amid political crisis MORE’s appointment of Whitaker to temporarily replace former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump's no racist — he's an equal opportunity offender Press: Acosta, latest to walk the plank The Hill's Morning Report — Trump retreats on census citizenship question MORE has been on the possibility of Whitaker removing Mueller, a move that would undoubtedly spark public outrage and trigger full-scale investigations by Democrats, who are poised to take control of the House in January.

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But federal regulations offer Whitaker, now acting attorney general, broad authority with respect to the special counsel that extends beyond the ability to remove Mueller, giving him the ability to curtail the probe in ways that would not necessarily become public knowledge until after the Russia investigation is over.

Whitaker has the power to weigh in on any major steps in the probe, such as the issuance of new subpoenas and indictments.

Should he remain at the helm of the Justice Department until the conclusion of the investigation, it will be up to Whitaker to decide which portions, if any, of Mueller’s final report are submitted to Congress or released to the public.

“He has a lot of authority, starting with his authority to remove Mueller if he finds he has good cause for doing so under the relevant regulation,” said Stephen Vladeck, a University of Texas law professor. “There are both hard and soft powers that the relevant regulation gives to the acting attorney general.”

Whitaker has assumed oversight of the probe from Deputy Attorney General Rod RosensteinRod RosensteinFeds will not charge officer who killed Eric Garner The Hill's Morning Report — Trump retreats on census citizenship question Judiciary issues blitz of subpoenas for Kushner, Sessions, Trump associates MORE at a critical point in the investigation, as the special counsel reviews Trump’s written answers to questions about potential collusion between his campaign and Moscow in 2016 and mulls further steps in his scrutiny of longtime Trump ally Roger StoneRoger Jason StoneJudge finds Stone violated gag order, blocks him from using social media Counterprotesters outnumber far-right extremists at DC rally Judge orders Roger Stone to file rebuttal to allegation he violated gag order MORE.

There are no outward signs of Whitaker limiting the probe. In a court filing Monday, Mueller’s team signaled that their authorities remain intact following the leadership shuffle at the Justice Department. Sessions submitted his resignation at Trump’s request on Nov. 7, and Whitaker was named acting attorney general that same day.

Democrats and other critics of the president have warned that Trump could be laying the groundwork to impede the investigation with Whitaker’s appointment. Last week, retiring Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeFlake urges Republicans to condemn 'vile and offensive' Trump tweets Flake responds to Trump, Jimmy Carter barbs: 'We need to stop trying to disqualify each other' Jeff Flake responds to Trump's 'greener pastures' dig on former GOP lawmakers MORE (R-Ariz.) unsuccessfully tried to force a vote on legislation that would protect Mueller from being fired. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell: Trump 'on to something' with attacks on Dem congresswomen Dems open to killing filibuster in next Congress Senate passes bill making hacking voting systems a federal crime MORE (R-Ky.) has said such a measure is not necessary because he does not believe Mueller is in danger of being removed.

The Justice Department declined to comment on the concerns surrounding Whitaker. It also declined to comment on whether Whitaker has taken any steps with respect to the special counsel investigation since his appointment.

Whitaker publicly criticized the investigation on several occasions before joining the Justice Department, arguing in an August 2017 CNN op-ed that the investigation into Trump was going “too far” and should be limited.

Trump, meanwhile, has increasingly expressed disdain for the probe and in August publicly called on Sessions to “stop” the investigation “right now.”

In a recent interview with “Fox News Sunday,” Trump said he was unfamiliar with Whitaker’s previous views on the Mueller probe before appointing him. He also indicated he would not intervene if Whitaker took action to pump the brakes on the investigation.

“It’s going to be up to him. I think he’s very well aware politically.” Trump said. “There was no collusion whatsoever, and the whole thing is a scam.”

According to federal regulations in place since 1999, Mueller is not subject to day-to-day supervision from the acting attorney general or any other Justice Department official. He is also equipped with the power and independent authority equal to that of a U.S. attorney.

However, Mueller is required to notify the acting attorney general of any “significant events” in the investigation, ranging from plans to pursue charges or subpoena witnesses to testify. Whitaker can request briefings on any investigative or prosecutorial steps and block actions that he deems to be inappropriate or unwarranted under department practices.

Legal analysts say Whitaker, in theory, could prevent Mueller from subpoenaing Trump to testify before the grand jury, a prospect that is already subject to legal debate.

On Tuesday, Trump submitted written responses to the special counsel’s questions on collusion but has not agreed to a sit-down interview sought by Mueller’s team. If negotiations with Trump’s lawyers on an interview falter, which appears likely, it is possible Mueller could try to subpoena the president to testify.

“He’s got a lot of latitude to run his investigation,” Randall Eliason, a law professor at George Washington University, said of Mueller. “But the attorney general has ultimate authority, so in theory, he could stop the special counsel from taking certain steps.”

Eliason was doubtful that Whitaker would take drastic steps to impede the investigation, given the resistance he would likely meet within the department and from people like Mueller, Rosenstein and FBI Director Christopher Wray.

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“I think there’s the theory and the reality,” Eliason said. “There’s a lot of institutional weight and gravity within the Department of Justice about doing the right things and the way things are done.”

He added that it would be “pretty tough for Whitaker to sit in a meeting with Bob Mueller and Christopher Wray and Rod Rosenstein and say, 'we’re not going to do this.' ”

Whitaker would have to inform Congress of any move to stop certain actions by the special counsel. But that notification isn’t required until after the investigation has concluded.

Whitaker also has control over the special counsel’s budget and staff.

In a 2017 CNN interview, Whitaker envisioned a scenario in which a Sessions replacement could reduce Mueller’s budget “so low that his investigations grinds to almost a halt.”

Mueller would need Whitaker’s approval to expand the investigation to probe matters beyond his original jurisdiction.

It is unclear when Mueller will wrap up his probe, but those who are closely tracking the developments say the investigation is likely in the late fact-finding stages. The special counsel is required to submit a final confidential report to the attorney general.

That report is expected to contain grand jury testimony and other sensitive information, increasing the odds that the government will keep at least some of it sealed. But Democrats in Congress have already signaled they will fight to make its contents public, which could spur a tense standoff with the administration.

“I would do anything and everything in my power to have the findings presented not only to the Congress but to the people of the United States,” Rep. Elijah CummingsElijah Eugene CummingsNew CDC overdose estimates are nothing to celebrate Overnight Health Care — Presented by PCMA — Sanders mounts staunch defense of 'Medicare for All' | Biden, Sanders fight over health care heats up | House votes to repeal ObamaCare 'Cadillac Tax' | Dems want details on fetal tissue research ban DOJ, Commerce slam House Dems contempt vote as 'political stunt' MORE (D-Md.), the top Democrat on the House Oversight and Government Reform Committee, said recently on CBS’s “Face the Nation.” “I think it's very important.”

Any move by the acting attorney general viewed as limiting the investigation is likely to be met with intense political blowback. House Democrats could set hearings to investigate allegations of interference or obstruction and hold funding bills hostage in order to force actions with respect to the Russia probe.

Legal experts such as Steven Cash, a lawyer at Day Pitney LLP who used to work for the Senate Intelligence Committee and as legal counsel to Sen. Dianne FeinsteinDianne Emiel FeinsteinTop Democrats demand security assessment of Trump properties Democrats warm to idea of studying reparations Hillicon Valley: Senators unload on Facebook cryptocurrency plan | Trump vows to 'take a look' at Google's ties to China | Google denies working with China's military | Tech execs on defensive at antitrust hearing | Bill would bar business with Huawei MORE (D-Calif.), said that if the administration were to end the investigation prematurely or fire the special counsel, those moves would not erase the work Mueller has already done, such as securing the cooperation of several key witnesses, including former Trump campaign chairman Paul ManafortPaul John ManafortWebb: Questions for Robert Mueller Top Mueller prosecutor Zainab Ahmad joins law firm Gibson Dunn Russian oligarch's story could spell trouble for Team Mueller MORE, and compiling grand jury testimony and evidence in the 18 months since the start of his investigation.

“It’s really hard to put that toothpaste back in the tube,” Cash said.