House Judiciary Committee Democrats signaled some wiggle room Thursday for acting Attorney General Matthew Whitaker, who is poised to testify to the panel Friday about his three-month tenure leading the Justice Department.
That appeared to be a walk-back for Mr. Nadler, who hours earlier had led the panel in approving a subpoena to demand Mr. Whitaker appear and be prepared to answer a series of questions about his interactions with President Trump — or else face consequences.
Mr. Nadler didn’t serve the subpoena, but said he wanted to have it in hand in case Mr. Whitaker became evasive.
But that threatened to squelch the entire hearing, after Mr. Whitaker said it poisoned the spirit of cooperation they’d had when they negotiated his voluntary appearance.
The Justice Department said absent a written assurance the subpoena wouldn’t be issued, Mr. Whitaker would cancel.
“We would regard the service of a subpoena today or tomorrow to be a breach of our prior agreement that the acting attorney general would testify voluntarily on February 8,” Assistant Attorney General Stephen E. Boyd said in a letter to Mr. Nadler. “Absent such an assurance, the acting attorney general will be forced to decline to participate in the hearing.”
Mr. Nadler’s evening letter appeared to concede the case.
“If you appear before the committee tomorrow morning and if you are prepared to respond to questions from our Members, then I assure you that there will be no need for the Committee to issue a subpoena on or before February 8,” he wrote. “To the extent that you believe you are unable to fully respond to any specific question, we are prepared to handle your concerns on a case-by-case basis, both during and after tomorrow’s hearing.”
Mr. Whitaker was to be the first major controversial administration figure to appear before the new Democratic majority.
Democrats have a list of questions to fire at him — which they provided him last month — including whether he was in the loop before Mr. Trump ousted former Attorney General Jeff Sessions, why Mr. Whitaker didn’t recuse himself from overseeing the special counsel Russia probe, and what Mr. Whitaker’s interactions have been with the president since taking office.
He was also prepared to testify about the ethics review that said he didn’t need to recuse himself from overseeing the probe.
But he would not testify about communications with Mr. Trump.
The standoff had threatened to become a major constitutional clash.
If the committee feels wronged, its chief recourse is to hold Mr. Whitaker in contempt. That vote would have to be approved by the whole House, and then usually would be turned over to the Justice Department to decide whether to enforce the subpoena.
That’s what happened when former Attorney General Eric H. Holder Jr. was held in contempt by the GOP-led Congress in 2012. Mr. Holder’s Justice Department declined to take any action, effectively shielding him.
The hearing with Mr. Whitaker is all the more striking because he could be out of the acting attorney general’s job next week. The Senate could vote to approve President Trump’s nominee, William P. Barr, within days.
Mr. Whitaker, who had been chief of staff to Mr. Sessions, was appointed by Mr. Trump to take the acting attorney general’s job ofter Mr. Sessions resigned, under pressure, in November.
Mr. Sessions had recused himself from overseeing the Russia investigation, leaving Deputy Attorney General Rod Rosenstein in charge.
With Mr. Sessions’ departure, Mr. Whitaker took over supervision.
“A subpoena should only follow the breakdown of an accommodation process, and as a last resort against persons seeking to frustrate the legitimate oversight of this committee. There has been no breakdown here,” said Rep. Doug Collins, the ranking Republican on the panel.
Since Mr. Rosenstein was in charge for most of the Russia probe’s time, Republicans demanded he also be added to the subpoena.
Democrats defeated that, then approved the Whitaker subpoena on a 23-15 vote.