8 Nov 2018

Can the new US attorney general shut down the Mueller probe?

7:27 pm on 8 November 2018

US President Donald Trump's decision to replace the Attorney General with a noted critic of Special Counsel Robert Mueller has raised fears about the future of Mueller's investigation of Russian interference in the 2016 election.

Jeff Sessions shakes hands with US President Donald Trump.

Jeff Sessions was asked to submit his resignation as US Attorney General. Photo: AFP / Getty Images

Mr Trump appointed Matthew Whitaker, formerly Mr Sessions' chief of staff, as acting attorney general under the US Vacancies Reform Act, which lays out general rules for temporarily filling vacant executive branch positions.

The department confirmed he would be assuming oversight of the Mueller probe from Deputy Attorney General Rod Rosenstein. The investigation is looking into US allegations of Russian meddling in the election two years ago and any possible coordination between Russia and the Trump campaign, which the president denies.

The appointment generated immediate controversy given Mr Whitaker's previous public comments criticising the probe.

He previously wrote an opinion piece for CNN entitled "Mueller's investigation of Trump is going too far" that said Mr Trump's personal finances should be considered off-limits.

Senate Democratic leader Chuck Schumer called on Mr Whitaker to recuse himself over his previous statements, and Democratic Representative Jerrold Nadler said the House Judiciary Committee would investigate Mr Session's firing once he assumes the chairmanship in January.

Here is a look at how Mr Whitaker might stop or slow the Mueller investigation and the risks he might run in doing so.

Can Whitaker be forced to rescue himself?

Under government ethics regulation, federal employees are required to recuse themselves from matters where their impartiality could reasonably be questioned.

Mr Sessions, who was an early backer of the Trump campaign, recused himself in March 2017 from overseeing the Russia investigation under a similar rule which prohibits officials from overseeing investigations into subjects with whom they have a "a personal or political relationship."

The department's No. 2, Deputy Attorney General Rod Rosenstein, took over and appointed Mr Mueller after Mr Trump fired then-FBI Director James Comey in May 2017.

Kathleen Clark, a professor of legal ethics at Washington University, said Mr Whitaker's previous comments about the Mueller probe raise questions about his impartiality and warrant his recusal.

But Prof Clark said there was no clear enforcement action, like a lawsuit, that could force Mr Whitaker to recuse himself if he declined to follow the rule.

"Essentially we need to shame him into acting in compliance with the law," she said.

Can Whitaker fire Mueller?

The special counsel regulation under which Mr Mueller was appointed gives the attorney general or acting attorney general authority to fire Mr Mueller only for "good cause," such as misconduct, dereliction of duty, incapacity or conflict of interest.

If Mr Whitaker decided to fire Mr Mueller, he would need to inform the special counsel in writing of the specific reason for his termination.

Good cause is a difficult thing to show, especially since Mr Mueller's actions were approved by the deputy attorney general, said Jens Ohlin, a professor of criminal law at Cornell Law School.

"I don't think Whitaker has good cause to fire Mueller. He would have to trump up some charges," Prof Ohlin said.

Could a Mueller firing be challenged on legal grounds?

Mr Mueller could seek to challenge his own firing if he felt Mr Whitaker lacked the good cause required by the special counsel regulation, said Prof Ohlin. A court might then issue a temporary restraining order blocking his removal.

Any action by Mr Whitaker could potentially be challenged under the Vacancies Reform Act Trump used to appoint his acting attorney general. The law was intended to address vacancies created by deaths or resignations, but it is not clear it also applies to those created by firings.

There is some question whether Mr Sessions was fired or resigned. The former attorney general submitted a letter of resignation at the president's "request."

The possibility that Mr Sessions was fired could open Mr Whitaker's appointment to court challenge by a range of people, including Mr Mueller, impacted by his actions. Or by people who have nothing to do with the Russia investigation, said Prof Ohlin.

But Paul Rosenzweig, a former senior counsel to independent counsel Kenneth Starr, said he thought such a lawsuit would be unlikely to succeed because the US Supreme Court has said the president has wide latitude to fire executive branch officials.

How could Whitaker impede Mueller without firing him?

Under the special counsel regulation, Mr Whitaker has the power to block any "investigative or procedural step" Mr Mueller recommends, such as bringing an indictment or subpoena, if he determines it to be "inappropriate or unwarranted under established Departmental practices."

Mr Whitaker would be required to notify Congress of such a decision.

The attorney general could also cut the budget for the special counsel's office. In fact, Mr Whitaker told CNN last year that a future attorney general could limit Mr Mueller by reducing the budget "so low that his investigations grinds to almost a halt."

Such actions would likely draw less political backlash than firing Mr Mueller directly, said Mr Rosenzweig.

Short of legislation intended to protect Mr Mueller, which is unlikely to pass, there is little Congress can do to challenge Mr Whitaker's oversight of Mr Mueller, said Mr Rosenzweig.

The requirement that Mr Whitaker notify Congress if he blocks Mr Mueller from doing something is "about political accountability, not legal accountability," Mr Rosenzweig said. "The notification to Congress is mostly about transparency."


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