See below for an update to this story.
Acting Attorney General Matt Whitaker is ready and “eager” to testify before the Democrat-controlled House Judiciary Committee on Friday, but the committee’s chairman, Jerry Nadler (D-N.Y.), has threatened to subpoena Whitaker anyway, “out of an abundance of caution,” Fox News reported Wednesday. Former Congressman Trey Gowdy (R-S.C.), meanwhile, said Whitaker shouldn’t bother because he’s only going to be acting AG for about another week.
Democrats want Whitaker to explain his reasons for not recusing himself from the Russia investigation. Former Attorney General Jeff Sessions allowed himself to be pressured into recusing himself, which led to Deputy Attorney General Rod Rosenstein taking charge and appointing Robert Mueller to lead the special counsel Russia probe. Whitaker last week told reporters that Mueller’s probe was “close to being completed.”
Senior DOJ officials told Fox News the department had a “fulsome letter in response [to Nadler] addressing executive privilege.” DOJ officials said Nadler will receive the response letter prior to Friday’s hearing.
Senior DOJ officials also told Fox News they will be monitoring the committee’s markup hearing on Thursday, where the subject of a potential Whitaker subpoena may emerge again, adding that the acting attorney general has volunteered, and is eager, to appear at Friday’s hearing.
DOJ sources call the idea of a subpoena of the acting attorney general “unprecedented,” adding that the department’s Office of Legislative Affairs has never seen anything like it.
“When did we start subpoenaing witnesses who come in voluntarily? The majority had enough faith in its witnesses last week not to subpoena them,” said Ranking Member Doug Collins, (R-Ga.). “The key difference today is simply that this witness is part of the Trump administration—and now we’re setting a dangerous precedent. The message to witnesses here is, if you make the time and effort to appear of your own accord, Democrats are going to subpoena you anyway.”
Gowdy, who joined a private law firm in Columbia, South Carolina, after he retired from Congress, told Fox News’ Martha MacCallum Wednesday evening that there are three reasons why Nadler would want to subpoena Whitaker.
“Number one, so you and I would be talking about it and others would be talking about it — the acting AG being under subpoena,” he explained. “Number two, it does compel attendance, but Matt’s already said he’s coming. Thirdly and importantly, what I don’t think your viewers know, is that when Matt says ‘I can’t answer that question because it’s privileged’ or ‘I can’t answer that question because it’s an ongoing investigation,’ if you’re under subpoena, it makes it much easier for the committee to compel you to answer.”
“That’s why they’re doing it,” Gowdy said. “They’re not worried about him showing up—he’s already said he’s coming.”
He added: “Although, Martha, I hope he doesn’t. He’s going to be the AG for another week. He’s got about another week, so he’s certainly not going to talk about his vision for the Department of Justice. He can’t talk about Mueller. He can’t talk about Rosenstein. He can’t talk about any ongoing investigation, and he can’t talk about any communications he’s had with the president. So what’s he going to talk about? He’s not going to be there in a week.”
Gowdy contended that Whitaker has “access to much better legal minds than mine,” but proceeded to give him advice anyway. “I think I’d have a cold Friday if I were him, and then by this time next week, Bill Barr will have been confirmed and then he can come answer all of Jerry Nadler’s questions,” he said.
Earlier in the interview, Gowdy responded to House Intelligence Chairman Adam Schiff’s purported expanded probe into Trump and Russia.
President Trump on Wednesday called Schiff “a political hack who is trying to build a name for himself.” The Democrat tweeted in response: “We’re going to do our job and won’t be distracted or intimidated by threats or attacks.”
“I just wish Adam would be intimidated by facts,” Gowdy drawled. “The two years that I worked with him on the Russia probe, Adam was wrong about collusion. Remember he said he had evidence that was more than circumstantial, but not quite direct, that the president colluded with Russia.
Gowdy pointed out that Schiff was also wrong about his Donald Trump Jr. conspiracy theory and accused him of leaking incorrect information to media outlets.
“I wish Adam were serious about oversight,” Gowdy lamented. “There’s a lot that needs to be done in the intelligence community about leaks, about FISA…. He’s not interested in that. He is interested in undoing the 2016 election results.”
UPDATE 2:08 p.m. EST: Whitaker now says he won’t appear before the House Judiciary Committee on Friday unless he receives written assurance by 6 p.m. ET Thursday that he will not be served with the subpoena. New York Post:
“I remain willing to appear to testify tomorrow, provided that the chairman assures me that the committee will not issue a subpoena today or tomorrow, and that the committee will engage in good faith negotiations before taking such a step down the road,” Whitaker said in a statement.
“Whitaker charged that the committee had “deviated from historic practice and protocol and taken the unnecessary and premature step of authorizing a subpoena to me, the acting attorney general, even though I had agreed to voluntarily appear.”
He called the subpoena a breach of his deal to testify before the committee, chaired by New York Rep. Jerry Nadler, and gave Democrats until 6 pm Thursday to respond.”
“Political theater is not the purpose of an oversight hearing, and I will not allow that to be the case,” Whitaker added.