Whitaker Didn’t Deny Discussing Cohen Probe With Trump, Nadler Says

House judiciary panel chief says ex-attorney general also was involved in talks over firing U.S. attorneys

Former acting Attorney General Matthew Whitaker was involved in conversations about the scope of New York federal prosecutors’ investigation into Michael Cohen, President Trump’s former lawyer, and about whether to fire one or more U.S. attorneys, the chairman of the House Judiciary Committee said Wednesday.

Speaking to reporters after a closed-door meeting with Mr. Whitaker, Rep. Jerrold Nadler (D., N.Y.) said Mr. Whitaker didn’t deny—as he had in a public committee hearing last month—that Mr. Trump had called him to discuss the Cohen investigation, in which prosecutors in December implicated the president in two federal campaign-finance violations.

Mr. Nadler said that Mr. Whitaker, while serving as acting attorney general, had been “directly involved” in conversations about whether to fire U.S. attorneys, though the congressman didn’t specify which ones.

Mr. Nadler also said Mr. Whitaker had been involved in discussions about the “scope of the Southern District [of New York] attorney and his recusal” from the Cohen investigation, and whether New York prosecutors “went too far” in pursuing their campaign-finance investigation.

Mr. Nadler didn’t specify with whom Mr. Whitaker had those conversations. The House Judiciary Committee believes it has evidence that Mr. Trump asked Mr. Whitaker whether Manhattan U.S. Attorney Geoffrey Berman could regain control of his office’s investigation into Mr. Cohen, The Wall Street Journal previously reported.

Mr. Berman is a former law partner of Trump attorney Rudy Giuliani and in 2016 donated to the Trump campaign. The president personally interviewed him for the U.S. attorney job, and last year he recused himself from involvement in the Cohen investigation.

Rep. Doug Collins of Georgia, the top Republican on the committee, disputed parts of Mr. Nadler’s account on Wednesday, saying Mr. Whitaker didn’t confirm that he had spoken with the president about the Cohen investigation. He also said Mr. Whitaker’s conversations about firing U.S. attorneys were “normal personnel issues.”

The revelation that Mr. Whitaker was involved in conversations about the possibility of curtailing New York prosecutors’ investigation into the president’s former lawyer could propel ongoing investigations by Congress and by special counsel Robert Mueller into whether Mr. Trump sought to obstruct justice. Mr. Trump has denied doing so.

.. Mr. Whitaker met for about two hours behind closed doors with Mr. Nadler and Mr. Collins after he agreed to appear voluntarily to clarify testimony he provided during a contentious public hearing before the committee last month.Republicans said Mr. Whitaker’s return to the Hill was unnecessary, but Democrats said they were concerned Mr. Whitaker’s public testimony was at times either not fully forthcoming or may have been deliberately misleading.

A Democratic aide, however, said that Mr. Collins asked Mr. Whitaker in a final volley of questions whether it was correct that he didn’t have any communications with the president about the Mr. Cohen case. Mr. Whitaker replied: “No, that is not what I am telling you today,” a response that reiterated he wasn’t denying such conversations did take place, according to the Democratic aide. A Republican aide countered that “we have no record of that statement.”

“What we learned from Mr. Whitaker today leaves open the question of whether the president called his attorney general and tried to convince him to make this damaging investigation go away,” the Democratic aide said.

Mr. Whitaker’s return to Congress was not without moments of levity. At one point, Mr. Whitaker asked Mr. Nadler if he would be talking to the media afterward and requested that Mr. Nadler “please let reporters know how good-looking I am,” according to Republican and Democratic aides.

Mr. Nadler made no mention of Mr. Whitaker’s looks during his remarks to reporters.

Whitaker hearing confirms it: On Mueller probe, Democrats have already won

The ranking committee Republican, Rep. Doug Collins (Ga.), did make one reasonable point in his ranting: Since it looks like William Barr will be confirmed as the new attorney general in a matter of days, it may not be worth getting too worked up about anything having to do with Matthew Whitaker at this point. But what Democrats are concerned about is whether in his brief time running the Justice Department, Whitaker has done anything to undermine the investigation, or tip off President Trump to its substance.

.. Democrats are trying to do two things simultaneously with this hearing in particular and their broader efforts with regard to the Mueller investigation.

  1. The first is to discover whether there has been any improper interference from the White House to limit the probe.
  2. The second is to apply enough pressure that even if Whitaker — or the White House, or William Barr — wanted to hinder Mueller, they’d decide that doing so would be too much of a risk.

.. The truth is that Democrats have probably succeeded in the latter goal, which must be spectacularly frustrating for Trump. He has made no bones about the fact that he he expects his Justice Department appointees to protect him from accountability when it comes to Russia (and anything else). He repeatedly belittled his first attorney general for recusing himself from the investigation, saying that without Jeff Sessions overseeing it and therefore able to quash it or scale it back, “I don’t have an attorney general. It’s very sad.”

All evidence suggests that after pushing Sessions out, he appointed Whitaker in an acting capacity precisely because Whitaker had been publicly critical of the Mueller investigation. Yet Whitaker was under so much scrutiny on this question from the moment he took that position, he was almost certainly prevented from doing anything significant to impede Mueller. The same is likely to be true of Barr, who despite being critical of the investigation before his appointment now knows that if he really tries to protect Trump, eventually everyone will know and he’ll be disgraced.

If Trump had actually persuaded anyone to obstruct the Mueller probe on his behalf, he wouldn’t be tweeting “Witch hunt!!!” every few days. Those are the desperate cries of a man who wishes his underlings would obstruct justice on his behalf, but isn’t getting what he wants.

.. I’m sure Trump plays out an alternate history in his mind over and over, in which he appointed someone else to be attorney general at the beginning of his presidency, and that person not only never appointed a special counsel in the first place but also made sure that any questions about Russia were quietly shelved. Instead, we got Mueller conducting what seems to be a thorough and aggressive probe. No amount of evaded questions or Republican shouting at hearings or angry tweets has been able to stop it.

Episode 876: Patent Deception

World Patent Marketing’s pitch to inventors was simple: Pay us lots of money, and we’ll take care of the complicated patent office details. Hundreds of tinkerers and would-be visionaries took this deal.

After all, the patent system is complicated. Marketing is tricky. It can be hard to find factories. But, for new inventors, it’s hard to tell a legitimate service from a scam. It was especially hard to tell with World Patent Marketing, which boasted an advisory board that included Acting Attorney General Matthew Whitaker.

If you want more, check out this piece in the Miami New Times, by Brittany Shammas, who joins us on this week’s show.

What to ask Matthew Whitaker

What is the constitutional basis for your appointment? If your appointment is valid, what is left of the advice and consent process?

Did you consult with the Justice Department’s ethics attorneys on your involvement in the Russia investigation, given your past representation of Sam Clovis and public statements about the investigation? What did they say? Did you recuse in whole or in part? If you didn’t, isn’t there a risk at the very least of the appearance of a conflict of interest?

What directions, if any, were you given about the Mueller investigation from the White House?

Is the investigation lawful and constitutional?

Are you aware of any misconduct by the special counsel? Is there any possible conflict of interest that has not been reviewed and dismissed by Justice Department ethics attorneys?

Do dozens of indictments or pleas and one conviction suggest the investigation is worthwhile? 

Is it appropriate for the president of the United States to direct the Justice Department to prosecute a political opponent, or to lay off a political ally?

Is it appropriate for the president of the United States to make an allegation of criminality (bugging Trump Tower) against his predecessor without any factual basis?

As chief of staff to former attorney general Jeff Sessions, did you ever witness attempts by the president to compel Sessions to violate his ethical obligations and take over the Russia investigation? If so, did you report this to anyone?

Can a president obstruct justice by offering to pardon someone in exchange for a “thing of value”? Can a “thing of value” be refusal to provide incriminating information to a prosecutor or to provide inside information about a prosecution?

Can a president obstruct justice by interfering with a Justice Department investigation of himself and/or his family?

Can a president obstruct justice by writing up a false statement to disguise the purpose of a meeting under investigation?

You get the idea. It sort of makes you wonder if Trump is going to leave Whitaker in place until January. On the other hand, any nominee for the “permanent” attorney general slot is going to have to answer most of these questions in a Senate confirmation hearing.

Why Trump will look back fondly on the Mueller probe

It’s possible-to-likely that sometime next year, President Trump will look back on the Mueller probe with yearning and nostalgia — given what’s about to happen to his administration in the newly Democratic House of Representatives.

.. Of these 27 committees, by my count, 22 deal with substantive matters in which the Democrats have already expressed displeasure with, or horror at, or concern over, the behavior of the Trump administration.

Let’s go through a few of them, shall we? The House Armed Services Committee deals with the US military and the Pentagon. Questions have been raised about the politicized nature of the president’s deployment of troops to the US border to protect the nation from the migrant caravan.

I bet you haven’t heard of Rep. Adam Smith of Washington, who will chair the committee. But you will. Oh, yes, you will — when he hauls Defense Secretary Jim Mattis into a hearing to go over how much the mission cost and who ordered it and what the purpose was and whether Mattis himself agreed with the idea.

He will be on the front pages of every newspaper and his hearing will be carried live on the cable news channels.

How about the House Foreign Affairs Committee? New York’s own Eliot Engel will be chairing that one, and you can bet Engel will be interested in hearing from State Department officials about the goings-on behind the scenes between Saudi Arabia and the United States, including questions about the commingling of American foreign policy with Trump family business interests.

Oh, and let’s not forget the House Judiciary Committee, shall we? My congressman, Jerry Nadler, will be in charge of that one. And he’s already vowed to call Acting Attorney General Matthew Whitaker as his first witness, over Whitaker’s “expressed hostility” to Mueller and the threat he represents to the “integrity of that investigation.”

But you can bet Nadler won’t stop with Whitaker. He’ll aim for Trump and those closest to him. He wants to look into Russian collusion as a possible preliminary to impeachment proceedings against the president.

Even a boring committee like Natural Resources has a fat target: Interior Secretary Ryan Zinke, who has had two different matters referred by the department’s inspector general for possible criminal prosecution.

Notice I haven’t even mentioned Ivanka’s e-mails. Or Jared Kushner’s family deals in China. Or about a hundred other controversial topics. And I can’t mention things that haven’t happened yet — weird new developments of the sort the Trump administration seems to generate every week and will certainly continue to generate in 2019.

Mueller’s probe has been mostly very quiet, except when indictments are issued and trials are conducted. It has also been largely confined to a single subject area. Most of the matters I’m talking about here will be discussed loudly and without restraint by those elected officials who will feel particularly emboldened by the midterm election results.

Those results not only showed a Democratic gain of as many as 40 seats in the House, but a national popular-vote margin of more than eight points over the Republicans in an off-year in which Democrats received nearly as many votes collectively as Donald Trump scored in 2016.

Mueller Has a Way Around Trump and His Minions

A road map from the Watergate prosecution shows a potential route for the special counsel to send incriminating evidence directly to Congress.

But a 44-year-old road map” from the Watergate prosecution shows a potential route for Mr. Mueller to send incriminating evidence directly to Congress. The road map was devised in 1974 by the Watergate special prosecutor, Leon Jaworski, with our assistance. We wrote the road map — actually a report — to be conveyed to Congress; it was called “Report and Recommendation” and served as a guide to a collection of grand jury evidence contained in a single document. That evidence included still-secret presidential tape recordings that had been acquired through grand jury subpoena — but which had been withheld from Congress by President Nixon.

The recent decision by Washington’s Federal District Court chief judge, Beryl Howell, to release the document from the National Archives provides a historic legal precedent that could be a vehicle for Mr. Mueller and the grand jury assisting him to share the fruits of their investigation into possible criminal conduct within the Trump presidential campaign and subsequent administration.

.. In all the discussion about Mr. Mueller’s options when he concludes his investigation, little attention has been paid to the potential role of the grand jury. Chief Judge Howell’s decision unsealing the Watergate road map brings new focus on the role the grand jury might play in the dynamics of the endgame. Although the grand jury is a powerful tool for federal prosecutors, it has historic and independent power and operates under the supervision of the federal judiciary. Following the Oct. 20, 1973, “Saturday Night Massacre” — in which President Nixon forced the Justice Department to fire the original special prosecutor, Archibald Cox — the Watergate grand jury played a critical role in forcing the president to back down, hand over the subpoenaed tapes and appoint a new special prosecutor.

.. Although Mr. Cox had been fired, his staff — duly appointed federal prosecutors — had not. The grand jury, as an arm of the judicial branchcould not be fired by the president. Indeed, Judge John Sirica of the United States District Court immediately summoned the grand juries (there were two) to his courtroom and exhorted them to continue to pursue their investigations and assured them that they could rely on the court to safeguard their rights and preserve the integrity of their proceedings.

.. In the face of Congress’s inability to obtain evidence that the grand jury well knew incriminated the president, we prepared the grand jury report to Judge Sirica and requested that he use his plenary authority to transmit that evidence to the House Judiciary Committee

.. It was carefully written to avoid any interpretations or conclusions about what the evidence showed or what action the committee should take. The report contained a series of spare factual statements annotated with citations to relevant transcripts of tapes and grand jury testimony. Copies of those tapes and transcripts were included as attachments.

.. Much note has been made of the fact that the Justice Department regulations under which Mr. Mueller was appointed actually require him to submit a report to the attorney general. Importantly, nothing in the department regulations prohibits Mr. Mueller’s Department of Justice superior, now Mr. Whitaker, from refusing to release the report.

.. What if Mr. Mueller concludes that the president has committed a crime? The question of whether a sitting president can be indicted remains a subject of vehement debate among scholars. But assuming that Mr. Mueller follows what many regard as “current Justice Department policy” based on several past internal legal opinions that an indictment is inappropriate, then the appropriate place for consideration of evidence that the president has committed crimes rests definitively and exclusively with Congress.

.. If Mr. Mueller has obtained such evidence, his responsibility and the correct operation of our system of government compel the conclusion that he and the grand jury can make that evidence available to Congress through a report transmitted by the court.

.. With the fox now guarding the henhouse, there is sufficient precedent for the grand jury and Special Counsel Mueller to seek the chief judge’s assistance in transmitting a properly fashioned report to Congress.