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What the acting attorney general thinks of the Mueller probe

What does the departure of Attorney General Jeff Sessions mean for the Mueller investigation? Matt Whitaker, the acting attorney general, was formerly Sessions’ chief of staff, but before joining the Justice Department, he was openly critical of the Mueller probe he now oversees. William Brangham speaks with Devlin Barrett,who covers the Justice Department for The Washington Post.

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  • Judy Woodruff:

    We turn now to yesterday's shakeup at the very top of the Department of Justice.

    The firing of Attorney General Jeff Sessions continues to stir questions about the future of the special counsel's Russia investigation.

    William Brangham explores this uncharted territory.

  • William Brangham:

    Just to review how we got here, last year, Jeff Sessions recused himself from any investigations into the 2016 campaign.

    And so, when Robert Mueller, the special counsel, was later appointed to lead the Russia probe, oversight of that investigation fell to Deputy Attorney General Rod Rosenstein.

    But with Sessions being pushed out yesterday, that oversight now reverts to his replacement, his former chief of staff, and now the acting attorney general, Matthew Whitaker. Before joining the Justice Department, Whitaker was openly critical of the Mueller investigation. He accused it of overreach. He said there was no evidence of collusion. He also said there was no evidence Russia interfered in the election at all.

    Those opinions have led some leading Democrats, as well as protesters in several cities tonight, to call Whitaker to recuse himself and to protect Robert Mueller.

    To help us understand what all this could mean for the Russia investigation, I'm joined now by The Washington Post's Devlin Barrett, who has been breaking some very interesting news on this today.

    Devlin, welcome back to the show.

    I would like to get into two of the things that you reported today.

    The first was, we have heard leading Democrats, and now many people around the country today, saying Whitaker has to recuse himself because he has clearly expressed he's already made up his mind about Mueller's investigation.

    You reported today that that doesn't seem likely, that recusal.

  • DEVLIN BARRETT, The Washington Post:

    Right.

    We're told that Whitaker has no intention of recusing and also that he is very skeptical of any potential subpoena of the president, both of which could, you know, have real significant consequences for the Mueller investigation.

  • William Brangham:

    So help me understand this. There is no law that could compel Whitaker to recuse himself, right? So what if he's made these opinions?

    Is there any arbiter here that could say, well, you actually can't be overseeing an investigation you have already passed judgment on?

  • Devlin Barrett:

    So, the recusal process is a little murky, and — but what we do know is that what happens is, ethics officials at the Justice Department can look at a person's past work and past statements and make a recommendation as to whether or not they should recuse from specific matters.

    But part of that involves the essentially voluntary cooperation of the official in question. And what we're hearing is that Whitaker, as the attorney general, doesn't really believe there is an issue there and isn't particularly interested in having a conversation with ethics officials about that matter.

    Now, we are told that Whitaker intends to follow the normal process on such questions, but it's a real open question, if the person themselves doesn't believe that there is a conflict or a potential conflict, how much does a recommendation from the ethics office matter? And that's sort of where we stand now.

  • William Brangham:

    The other thing that you touched on earlier was this other piece of your reporting today, which is no one believes that Whitaker will allow Robert Mueller to subpoena the president.

    For people who haven't been following this that closely, explain where we are with regards to Mueller and his would-be interview with Donald Trump.

  • Devlin Barrett:

    Right, this has been essentially an endless negotiation. It's been going on for months, where Mueller and his lawyers have been trying to get the president to agree to an interview, and the president's lawyers have been resisting that, you know, offering written answers, debating sort of the subject matter that can be asked about, that sort of thing.

    And what's interesting from a strategic point of view about the notion that Whitaker may just simply not agree to consider a subpoena of the president is, the threat of that subpoena has hung over these negotiations the entire time.

    If, in fact, the Justice Department takes away the threat of that subpoena, to a certain degree, the negotiations probably die, because, at that point, the Justice Department has much less ability to pressure the president or the White House into submitting to an interview.

  • William Brangham:

    Help us understand a little bit more. What other levers, control, et cetera, does Whitaker have over Mueller? Could he go to Mueller tomorrow and say, I want you to stop investigating this particular part of your investigation?

  • Devlin Barrett:

    Well, the main area in which the senior Justice Department official oversees Mueller is the way that the regulations are written, the senior — the attorney general has the authority, has final approval for what's called significant or major acts in the investigation, so, for example, a subpoena of a major figure, an indictment of — in the investigation.

    So, major steps require the approval of the attorney general. So, you know, it's up to Whitaker, essentially. If Mueller asks to take a major step, will Whitaker agree, or will Whitaker say, I don't think you have it, I think you need to do more work, or I just don't think this case is strong enough?

    Those are the questions that are being asked now, but, really, the — the next move is Whitaker's. You know, we haven't seen a signal from him yet what he actually plans to proactively do, as opposed to not do.

  • William Brangham:

    And just remind us as well, Whitaker himself, as the acting agent, he would have the authority to fire Robert Mueller if he wanted?

  • Devlin Barrett:

    He does have that authority. That does rest with him, yes.

  • William Brangham:

    Lastly, there was an interesting article in The New York Times today. Several legal scholars argued that President Trump doesn't have the constitutional right to appoint Whitaker to this position without Senate approval.

    Can you explain what that argument is all about?

  • Devlin Barrett:

    Yes.

    It's an interesting argument. But I will be honest. I know those are two excellent lawyers, but I will be honest. I know dozens of lawyers in town who are themselves pretty good lawyers who disagree emphatically with their interpretation of the law.

    What they don't seem to address is, there's what's called the Vacancies Reform Act. And the Vacancies Reform Act spells out this process very clearly. And, frankly, the large majority of the lawyers I have spoken to say that there is legal authority to appoint Whitaker to this position under the Vacancies Reform Act.

    I understand that people, including some pretty good lawyers, have some questions about that, but to be honest, there's not much of a view inside the government or even, frankly, inside Washington that the president doesn't have the actual authority to do so.

  • William Brangham:

    In the last few moments we have, I'm just curious if your reporting has shown, is there any evidence that President Trump knew about Mr. Whitaker's opinions about the Mueller investigation when he gave him this job?

  • Devlin Barrett:

    A little bit, in the sense that, yesterday, we were told that the president doesn't believe Whitaker would recuse from the Russia investigation.

    Now, we don't really know the basis for that belief. Is that belief based on something that Whitaker told the president or told someone in the White House, or is that simply a belief that the president came to based on, you know, knowing something about Whitaker's background and his past public statements?

    But do I think it's very interesting and potentially important that the president believed, at least as of Wednesday, that Whitaker wasn't planning to recuse himself from the Russia investigation.

  • William Brangham:

    All right, Devlin Barrett of The Washington Post, thank you so much.

  • Devlin Barrett:

    Thanks for having me.

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