After Sessions: How Trump move may shift dynamics of Mueller probe

In the summer of 2017, as special counsel Robert Mueller was ramping up his Trump-Russia investigation, a former US attorney in Iowa began offering legal commentary on CNN.

His views clashed with most of the other talking heads on the cable news outlet calling for multiple, wide-ranging investigations of President Trump. 

In contrast, Matthew Whitaker, a conservative Republican, argued that the Trump-Russia investigation should be strictly limited to examining whether Mr. Trump or his campaign colluded with Russia to meddle in the 2016 presidential election. And Trump’s financial records, he argued, should be off limits.

His comments did not go unnoticed. By October 2017, Mr. Whitaker had a new job: chief of staff to Attorney General Jeff Sessions.

This week, Whitaker got another promotion. With the forced resignation of Mr. Sessions one day after the midterm elections, Whitaker was named acting attorney general of the United States.

The cabinet-level reorganization was executed with the kind of ruthless precision usually found on a grandmaster’s chess board. The highly unusual appointment sent shockwaves across much of official Washington.

In a single, bold stroke, Trump replaced an attorney general who had recused himself from any involvement in the Trump-Russia investigation with someone presumed to be unburdened by that ethical constraint.

The move effectively pushed aside Deputy Attorney General Rod Rosenstein as the supervisor of the Trump-Russia investigation. That job now falls to Whitaker.

It remains unclear how Whitaker will use his new authority over Mr. Mueller and his team.

The growing partisan divide over the investigation was on clear display in the responses of key lawmakers to the move. Many Democrats immediately condemned it as an effort to undercut the Trump-Russia investigation. Some expressed concern it might lead to an attempt to obstruct justice to protect Trump or members of his family.

Sen. Dick Durbin (D) of Illinois called the maneuver “a transparent effort to clear the way for President Trump to limit or stop the Mueller investigation.” He added: “Acting Attorney General Whitaker has made his intentions clear to do the president’s bidding and stop Mueller.”

But Sen. Chuck Grassley, the Republican chair of the Senate Judiciary Committee, struck a very different note. “I look forward to working with Matt Whitaker as he takes the helm of the Justice Department,” Senator Grassley said in a statement. “A fellow Iowan, who I’ve known for many years, Matt will work hard and make us proud.”

He added: “The Justice Department is in good hands during this time of transition.”

It was no secret that Trump was displeased with Sessions. One month after his Senate confirmation, Sessions announced that because of his active work on the Trump campaign, he would recuse himself from any involvement in the ongoing investigation of alleged collusion between the campaign and Russia.

In his absence, Mr. Rosenstein, a former US attorney in Maryland, became acting attorney general for purposes of the Russia investigation.

After Mueller’s appointment as special counsel, Rosenstein’s supervisory authority became critical. It was up to Rosenstein to set the parameters for the investigation. While Mueller was authorized to look into allegations of Trump-Russia collusion, he was also authorized to pursue any matters that “arose or may arise directly from the investigation.”

Mueller has indicted Russians for allegedly using deceptive techniques on social media to influence US public opinion during the 2016 election season. He has also indicted Russian intelligence officers for allegedly hacking into the Democratic Party’s computer system and publicly releasing embarrassing emails and other internal documents prior to the election.

What Mueller hasn’t done – at least so far – is indict any member of the Trump campaign or Trump administration for colluding with Russians during the 2016 campaign.

All of the Americans charged by Mueller have been investigated and prosecuted under an expansive interpretation of the special counsel’s investigative mandate. Those cases, involving lying to federal agents, tax evasion, and bank fraud, were brought in part to increase pressure on certain individuals to cooperate with prosecutors in the Trump-Russia probe.

This is a standard investigative practice, but it highlights the power of whoever supervises the ongoing investigation.

And it’s where Whitaker could have a significant impact, should he seek to enforce a more constrained interpretation of the investigative scope established by Rosenstein, according to legal analysts.

It is not clear that he will do so. But in an opinion essay written for CNN in August 2017, Whitaker said that an attempt by the Mueller team to investigate Trump’s finances would exceed the scope of the special counsel’s mandate.

“It is time for Rosenstein … to order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel,” Whitaker wrote. “If he doesn’t, then Mueller’s investigation will eventually start to look like a political fishing expedition.”

’Incredible self-confidence or incredible panic’

The timing of Sessions’ removal and Whitaker’s appointment raise questions about Trump’s motives, according to analysts.

“In some ways this isn’t even surprising. It is something everyone expected [Trump] to do,” says Paul Rosenzweig, a senior fellow at the R Street Institute and a former prosecutor on the staff of independent counsel Ken Starr.

“It is just incredibly aggressive to do this less than 24 hours after the election,” Mr. Rosenzweig says. “That either reflects incredible self-confidence or incredible panic – or both.”

Sarah Turberville of the Project on Government Oversight says Whitaker could help ease concerns about his appointment by publicly reaffirming the independence of Mueller’s investigation.

“While it is perfectly legal under the Vacancies Act for Whitaker to be appointed acting AG, it doesn’t necessarily mean it is the ethical or the right thing for the president to do, given the sensitivity of this investigation,” she says.

“It doesn’t make sense for Whitaker to do anything rash,” Ms. Turberville adds. “By most accounts, the special counsel’s investigation seems to be coming to its natural conclusion.”

Of course, no one knows for sure whether the investigation is nearly complete. (Mueller’s office does not issue such updates.)

Critics are calling on the acting attorney general to follow the same path as Sessions and recuse himself because of his past public comments on the Mueller investigation, and because he served as the campaign treasurer of a former Trump campaign aide who is a grand jury witness in the Mueller probe.

Whitaker has offered no indication that he views these issues as posing a conflict of interest that would require him to step aside.

“I doubt he will recuse himself,” says Kami Chavis, director of the Criminal Justice Program at Wake Forest School of Law.

“But it would also be unusual for a person [in an acting capacity] to make a big, seismic change,” she says. “Typically, when you have someone in an acting or interim role, the idea is that they will act in a professional manner and keep things going.”

And while critics worry that Whitaker is now in a position to undercut or end the Trump-Russia investigation, such actions would be impossible to conceal.

Any effort to sharply limit the Mueller probe would likely attract scrutiny by Senate oversight committees. In addition, the newly-elected Democratic majority in the House has pledged aggressive oversight – and support – for the Mueller probe when Democrats take control in January.

Even if Whitaker ordered Mueller to shut down and ordered all of his records sealed, it wouldn’t prevent members of Congress from issuing subpoenas and forcing Mueller and other officials to turn over documents and testify about any evidence of wrongdoing they had uncovered.

Justice Department credibility

Aside from any potential impact on the Mueller investigation itself, Sessions’ removal and Whitaker’s appointment could damage the Justice Department’s credibility as a government institution that traditionally functions apart from political pressures.

“There’s been a very hard wall between the White House and the Department of Justice regarding the handling of criminal prosecutions,” says Jonathan Smith, a former senior prosecutor in the department’s civil rights division.

The importance of that divide separating justice from politics was reaffirmed during the so-called Saturday Night Massacre in 1973, when Richard Nixon’s attorney general and deputy attorney general resigned instead of following his order to fire Watergate special prosecutor Archibald Cox.

Given that Sessions’ recusal from investigations of the Trump campaign was the only issue for which Trump consistently criticized him, Wednesday’s forced resignation looked to many analysts suspiciously like an attempt to interfere in the Mueller investigation.

“It may not violate the law, but it is grossly inappropriate,” says Mr. Smith, “and it impugns the independence of the Justice Department.”

Still, others say it’s a far cry from the Watergate scandal.

“[Trump] didn’t fire Sessions because Sessions refused to follow an order,” Rosenzweig says. “There is stuff behind it, but it is a lot less than the Saturday Night Massacre.”