Reactions To Sessions' Resignation NPR's Noel King speaks with former Assistant U.S. Attorney Kim Wehle on the new acting head of the Justice Department, who has spoken out about his concerns with the special counsel investigation.
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Reactions To Sessions' Resignation

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Reactions To Sessions' Resignation

Reactions To Sessions' Resignation

Reactions To Sessions' Resignation

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NPR's Noel King speaks with former Assistant U.S. Attorney Kim Wehle on the new acting head of the Justice Department, who has spoken out about his concerns with the special counsel investigation.

NOEL KING, HOST:

Attorney General Jeff Sessions has been fired. President Trump replaced him with now-acting attorney general Matthew Whitaker. Mr. Whitaker has made it clear that he's skeptical of special counsel Robert Mueller's investigation into Russian interference in the 2016 election. In an op-ed last year, Whitaker wrote that he believes Mueller is, quote, "dangerously close to crossing" a line in his investigation into the Russian interference. He was referring there to a plan by Mueller to look into the president's finances. I'm joined now by former Assistant U.S. Attorney Kim Wehle. Good morning, Ms. Wehle.

KIM WEHLE: Good morning.

KING: So who answers to whom at the Department of Justice now?

WEHLE: So the attorney - acting attorney general would be replacing Jeff Sessions and then Rod Rosenstein would be acting under him. That being said, there are some questions under a statute that governs these kinds of vacancies as to whether really it should be Mr. Rosenstein who is in that position, the acting attorney general, or if not him if it should be someone who's already gone through the Senate confirmation process. And we'll have to see if that gets challenged and, if so, what the answer would be. But today, it would be presumably Whitaker and then Rosenstein answering to Whitaker.

KING: And so does this mean that Mueller also answers to Whitaker?

WEHLE: Yeah because under the regulations that govern the Mueller probe, it's the attorney general and, in this instance, the acting attorney general that would be managing that process. But, again, if there's questions as to whether he's authorized under the Federal Vacancies Reform Act, which is the statute that I mentioned - or excuse me - the Federal Vacancies Act whether he would be a proper in - properly in that position, that's still, I think, unclear.

KING: OK. Could Whitaker shut down the Mueller investigation if he wanted?

WEHLE: Yeah. We're in a completely new landscape really now that Mr. Sessions is gone in terms of the options for the Mueller probe. You know, the president has taken the position that under Article 2 of the Constitution, he could do it himself. Whitaker could, under the regulations, do it for cause. That's a higher bar. But he could also - which is what we saw after the Saturday Night Massacre which happened under President Nixon - he could actually just rescind the regulations themselves because they're internal DOJ regulations. They're not an actual act of Congress. An act of Congress is what governed the Ken Starr investigation into the Clintons, which is something that I worked on. And Congress passed that knowing that if you leave it completely within the Justice Department and under the president's authority, as what happened under Watergate, then the president can start managing his own investigation, and then that's really a problem as a matter of accountability. But he could also - even if he didn't rescind the regulation, he could issue a revised referral, one that's much narrower than the one that Rod Rosenstein passed on. He could reassign the people that are within the Mueller probe right now that are supporting him to other parts of the Justice Department.

KING: Make sure that they can't do their jobs. Yeah.

WEHLE: Yeah. Or he could - when the fall comes around, he could basically shrink the budget so it doesn't actually function. And then the last point is that the regulations are clear that he can't manage the day-to-day operations, but he can disagree with certain investigative steps. He can ask for information on it, disagree with it, and in that instance, it appears that his decision would hold, the only limitation being he'd have to let Congress know that he's basically decided not to go forward on an investigative step or an indictment, for example.

KING: Now that the House is controlled by Democrats, is there anything that they can do to thwart a move to - a potential move - to shut down or choke off this investigation?

WEHLE: Well, the existing regulations require that when it's over that Mr. Mueller draft a report. But here again Mr. Whitaker could decide not to release the report. So Congress really has a couple options - I would say three options. One would be to go forward with the legislation so-called protecting Mueller that the Senate majority leader, Mitch McConnell, has refused to bring to the floor. That would create a statute that has more power essentially than the regulation and take it, the regulation, out of the complete control of Mr. Whitaker. The second would be, you know, start impeachment proceedings on their own after some kind of a more thorough investigative process. And I think, you know, strict readers of the Constitution might say that that's really the only proper resolution here to begin with. That is, that the Constitution allows for an impeachment process. And if there's wrongdoing by the president, it should be impeachment or not at all. And we've heard this discussion all along in terms of, oh, can Trump be indicted. Can Trump not be indicted? And, really, that comes down to whether impeachment is the exclusive process. And this seems to be teeing up in a way that that might be something that we're going to have to see if, as a practical matter, it's true or not.

KING: In the last couple of seconds we have left, is there anything Robert Mueller himself could do if he's concerned about the future of the investigation?

WEHLE: So that's a really great question. Under the statute that governed Ken Starr, if Starr was fired, he had an opportunity to go into court and challenge it. It's unclear if Mr. Mueller has that authority under the regulations. I think that would be challenged. He certainly - if he was sitting on indictments, which is possible right now, he could issue them, and then they would get into, I think, an internal power struggle with Whitaker now as to whether - you know, whether he should have done that or whether Whitaker can pull them back. And it's just unclear whether, you know, Mr. Mueller is going to take that kind of approach.

KING: A lot remains to be seen. Kim Wehle is a professor at the University of Baltimore and a former associate independent counsel in the Whitewater investigation.

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