Why Whitaker Refused to Testify if Supoenaed

Why Whitaker Refused to Testify if Supoenaed February 8, 2019

Acting Attorney General Matthew Whitaker was supposed to testify before a Congressional committee today but pulled out of it, and said that he would refuse to testify at all if the committee issued a subpoena forcing him to do so. Former federal prosecutor Renato Mariotti explains why he did so.

First, because he was informed by the committee chair, Rep. Jerrold Nadler, that he could not invoke executive privilege unless Trump official invoked that privilege, which he hasn’t done. Previous witnesses before Congressional panels have tried to refuse to answer certain questions because Trump might invoke that privilege, knowing that Republicans who controlled those committees would not enforce a subpoena and let them get away with it. Nadler is not doing so.

In a long Twitter thread, Mariotti said that House Judiciary Committee Chair Jerry Nadler (D-NY) gave Whitaker the questions he would be asked ahead of time. The goal being to explain none of the questions would apply to the executive privilege rules.

“Nadler did so because during the past two years when the GOP controlled Congress, Trump Administration officials would routinely refuse to answer questions without invoking executive privilege,” Mariotti said. “They did so knowing that Congressional Republicans wouldn’t compel their testimony.”

The former prosecutor explained that it isn’t “proper” to refuse due to executive privilege unless the president has formally proclaimed it.

Nadler gave the question in advance to give Trump time to actually invoke the privilege. Whitaker couldn’t walk into the hearing and say he was surprised by the questions and couldn’t answer because the president needs time.

Very smart move by Nadler. And since Trump has still not officially asserted such a privilege, he would have to answer those questions — but only if he’s subpoenaed:

“Similarly, Nadler prepared to subpoena Whitaker in case Whitaker refused to answer any of the questions,” Mariotti continued. “A voluntary witness (as Whitaker was) can refuse to answer questions, but a witness appearing pursuant to a subpoena is required to testify. If Whitaker was subpoenaed and refused to answer questions at that point, Congress could refer him to the [Justice Department] for Contempt of Congress.”

So he withdrew from the voluntary hearing and said he would refuse to testify under subpoena, because then he would be forced to answer those questions. Clearly he is trying to hide something. What other possible reason could there be? He knows that honest answers to at least some of those questions will get him into trouble. I can think of only one other strategic reason, which is that they want to delay this until the permanent Attorney General, William Barr, is confirmed (he was approved yesterday by the Senate Judiciary Committee). That way they can say, “Whitaker doesn’t need to testify at all, he isn’t even AG anymore.”

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