Trump may have seriously overreached this time. His impulsive decision to fire Attorney General Jeff Sessions was vetted by nobody.
And the pushback that he got, including from many Republicans, was sufficient to cause him to try to distance himself (preposterously) from the thuggish Matt Whitaker, whom Trump named as acting attorney general, but suddenly claimed he didn’t know.
But what of Special Counsel Robert Mueller? Constitutional scholars I’ve interviewed make the following points. Mueller has obviously been preparing for this day. He has several possible moves that could stymie efforts by Whitaker to derail his investigation.
First, he has the right to deliver sealed indictments and other background information directly to the grand jury, which is beyond the reach of Trump’s Justice Department. The grand jury could then issue indictments on its own.
Alternatively, Mueller could pass along the results of his investigation directly to New York City or state prosecutors, on the grounds that crimes have likely been committed within their jurisdictions. He could also pass along information to the U.S. attorney in the Southern District of New York.
He may already have done some, or all of this. If Whitaker tries to pen in Mueller, the horse is already out of the barn.
And Mueller could send his files to the House Judiciary Committee. The White House might try to assert executive privilege on the grounds that Mueller is technically an Executive Branch employee, but what is Trump’s practical recourse if the committee issues subpoenas for the material or if Mueller acts on his own? They can’t very well arrest Mueller.
For now, the three-judge panel overseeing the investigation has requested Whitaker to testify to explain how he intends to proceed.
He will be asked, under oath, whether he respects Mueller’s independence.
Trump may increasingly have allies in the courts, but he doesn’t control this court, which appears to be mightily offended.
And for now, Whitaker insists he will do nothing to derail the investigation.
Advantage, Mueller. Should Trump try to find another way to undercut the investigation, it only brings him closer to obstruction of justice and eventual impeachment.
If Trump’s goal in his abrupt Wednesday firing of Sessions was to change the subject from Tuesday’s election loss, he didn’t succeed. And if his goal was to clip Mueller’s wings, that also backfired.