The Justice Department told the House Judiciary Committee Thursday afternoon that acting Attorney General Matt Whitaker will not appear at Friday’s closely-watched oversight hearing unless he receives a written assurance by 6 p.m. ET Thursday that he will not be served with the subpoena the committee pre-emptively authorized to use if he avoids questions.
The House Judiciary Committee on Thursday voted to authorize a subpoena for Whitaker ahead of his Friday testimony.
In a letter to House Judiciary Chairman Jerry Nadler, the Justice Department outlined a number of questions that Whitaker is prepared to answer.
“The Acting Attorney General will testify that at no time did the White House ask for, or did the Acting Attorney General provide, any promises or commitments concerning the Special Counsel’s investigation,” Assistant Attorney General Stephen Boyd writes in the new letter obtained by CNN. “With respect to the Special Counsel investigation, the Department has complied with the Special Counsel regulations, and the Acting Attorney General will make clear that there has been no change in how the Department has worked with the Special Counsel’s office.”
A senior Justice Department official told CNN that the bottom line is that the Department is not aware of any precedent for the authorization of a subpoena before questioning.
“This is a breach of the agreement,” and a “striking departure from long-standing processes.”
Democrats approved the subpoena over the objection of Republicans, who accused Nadler of authorizing a pre-emptive subpoena as “political theater” with questions designed to embarrass the acting attorney general.
The resolution passed on a party-line vote, 23-13.
The threat of a subpoena now hangs over Friday’s hearing with Whitaker, in what is likely to be his only congressional testimony while leading the Justice Department, with William Barr on a path to be confirmed as the permanent attorney general by the Senate next week.
Nadler said that authorizing a subpoena for Whitaker was necessary because Whitaker failed to tell the committee whether the Trump administration would invoke privilege with respect to a series of questions they intend to ask about Whitaker’s conversations with the White House about special counsel Robert Mueller’s probe and his decision not to recuse himself from the matter.
Nadler argued in a letter to Whitaker that he could not claim the White House reserved the right to claim executive privilege to avoid answering those questions. He asked Whitaker to consult with the White House ahead of the hearing and tell the committee whether he would invoke privilege, though Whitaker has not responded to Nadler’s letter as of Thursday morning.
While the Justice Department did not respond to Nadler’s letter by his deadline, two senior Justice Department officials said the Justice Department is preparing a “fulsome” written response to Nadler, which is expected to address the issues about executive privilege that Nadler raised.
“The subpoena will only be issued if he refuses to answer questions on a speculative basis of privilege,” Nadler said. “If he does not show up — though I do expect he will — but if he refuses to answer questions he ought to answer, then we will have the tools we need to ensure that we may adequately meet our own responsibilities.”
Republicans slammed Nadler for pre-emptively planning a subpoena for a witness who had voluntarily agreed to testify, saying it was setting a troubling precedent.
“A subpoena should only follow a breakdown of the accommodation process and as a last resort against persons seeking to frustrate legitimate oversight on this committee,” said Rep. Doug Collins of Georgia, the committee’s top Republican. “There has been no breakdown here.”
Republicans proposed an amendment, offered by Rep. Andy Biggs of Arizona, to add Deputy Attorney General Rod Rosenstein — a familiar target of the GOP given his past oversight of the Mueller probe — to Nadler’s subpoena, which was rejected by Democrats.
Several Republicans on the committee pushed for former Judiciary Chairman Bob Goodlatte, a Virginia Republican, to subpoena Rosenstein in the last Congress, though he ultimately did not appear.
Whitaker has been undertaking significant preparations ahead of the hearing, including conducting briefings with every DOJ component and participating in several mock hearings, according to the officials.
This story has been updated with additional developments Thursday.