The House Judiciary Committee on Thursday will mark up a subpoena for acting Attorney General Matt Whitaker, which Chairman Jerry Nadler says will be drafted so he has it in his back pocket if Whitaker won’t answer the committee’s questions.
Whitaker is scheduled to appear before the panel for a public hearing Friday. Nadler, a New York Democrat, said he had scheduled the subpoena markup “in an abundance of caution” to ensure Whitaker testifies and doesn’t rely on executive privilege to avoid answering questions.
“To be clear, I hope never to use this subpoena,” Nadler said in a statement. “Weeks ago, we gave Mr. Whitaker a list of questions we hope to ask him about his communications with the White House and his refusal to recuse himself from oversight of the special counsel’s investigation. If he appears on time and ready to answer those questions, the subpoena will be entirely unnecessary.”
The text of Nadler’s subpoena has not been made public. It’s likely to depend on how and if Whitaker responds to Nadler’s letter sent last month asking him to inform the committee whether President Donald Trump plans to invoke executive privilege to avoid answering a host of questions.
“The committee will not accept your declining to answer any question on the theory that the President may want to invoke his privileges in the future,” Nadler wrote. “The President should consider any matter involving assertion of executive privilege prior to your testimony. Short of a direct and appropriate invocation of executive privilege, I will expect you to answer these questions fully and to the best of your knowledge.”
Rep. Doug Collins of Georgia, the top Republican on the committee, called Nadler’s subpoena a “dangerous precedent.”
“When did we start subpoenaing witnesses who come in voluntarily?” Collins said in a statement. “The majority had enough faith in its witnesses last week not to subpoena them. 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 that if you make the time and effort to appear of your own accord, Democrats are going to subpoena you anyway.”
Behind the scenes, Whitaker has been preparing for Friday’s hearings with Justice officials, and has every intention to show up, according to a Justice official. How exactly he responds to questions regarding his conversations with President, however, remains to be seen.
Nadler set a Wednesday deadline for Whitaker to respond to his letter, one day before Thursday’s subpoena markup.
Whitaker’s tenure as acting attorney general looks to be nearing an end, as the Senate Judiciary Committee is scheduled to vote on attorney general nominee William Barr’s nomination on Thursday. The full Senate is likely to consider him next week, and there’s no signs to this point his nomination is in jeopardy.
Whitaker’s appointment as acting attorney general in November faced a wave of criticism from Democrats. They argued he should recuse himself from supervising special counsel Robert Mueller’s investigation given his sharp criticisms of the probe before he joined the Justice Department.
Whitaker declined to recuse himself from the Mueller probe, ignoring the advice of a Justice Department ethics official. Last week, Whitaker told reporters he had been “fully briefed” on the investigation and said it was “close to being completed.”
Democrats are likely to press him at the hearing on any conversations with the White House and Trump about the special counsel’s investigation and any actions he has taken in the probe, as well as his decision to disregard the ethics official’s advice on recusal.