Greg Sargent looks down the road to the inevitable fight between incoming House Democratic majority and the Trump White House over the Mueller probe and comes up with four possible paths:
House Democrats can investigate the firing of Sessions. The question of whether Trump fired Sessions or whether Sessions merely resigned is critical. If Trump fired Sessions, it might not be legit that Trump replaced him with an acting attorney general (Whitaker) who didn’t require Senate confirmation (which Trump may have wanted to do to insulate the replacement from questioning from senators about his intention toward the Mueller probe). Mueller could conceivably challenge the appointment in court if Whitaker does try to shut down or severely constrain the probe.
Sessions was definitely fired, but I don't believe this alone will fix the problem. It's a part, sure, but it can't be the only attack from the Democrats.
Subpoena Sessions himself. House Democrats can try to question Sessions himself, both about the circumstances surrounding his firing and, more broadly, about private meetings in which Trump raged at Sessions for failing to protect him from the investigation. Sessions would likely assert executive privilege regarding his conversations with Trump.
It's that last part that will make this drag on, and again, it won't solve the issue.
Subpoena Mueller’s findings. Under the regulations governing the special counsel, he is to provide a “confidential” report explaining his conclusions to the person overseeing the probe — who would have been Rosenstein but now will be Whitaker. It is Whitaker who is then supposed to provide a report to the bipartisan leaders of the House and Senate judiciary committees, which gives him a great deal of discretion to decide how much to put in that report.
Whitaker could theoretically report little to nothing, in effect covering up what Mueller learned. “Democrats could subpoena Mueller’s findings,” Chafetz tells me. “But expect the White House to put up a fight in response to the subpoena.” Other legal experts think that if the White House defied such a subpoena, the courts would rule against them, meaning Congress would get Mueller’s findings.
This is probably the best of the possible paths to take. Even better, leaking all this to the NY Times or Washington Post becomes another Pentagon Papers fight, but once this is all out there, that becomes moot.
Impeach the acting attorney general. This is a far-fetched scenario, but it’s not an impossibility. As it is, Whitaker has publicly opined that Mueller has gone too far in probing Trump’s finances and has openly suggested that one option is to de-fund the investigation. On these grounds, Democrats have called for his recusal.
Here an irony kicks in. A handful of House Republicans loyal to Trump tried to impeach Rosenstein earlier this year on grounds so specious that even many Republicans, including the leadership, rejected it. It’s hard to say what circumstances might justify such a move against Whitaker, if any, but if he shuts down the Mueller probe without good cause, that might be seen as extremely serious misconduct — far more serious than what Republicans alleged against Rosenstein.
Again, possible, but only the third option above actually gets the Mueller probe info into the public eye.
Having said all this, the absolute best option is for Mueller to start raining down indictments like a biblical monsoon as well as allow the state investigations underway, especially those in NY, come to fruition. Trump can't avoid or shut those down.
The wild card however remains the Supreme Court. At some point, all this will go to the nine justices, five of which have been appointed by Republicans, two by Trump himself. There appears to be clear law here and precedent to follow, but anyone counting on the Roberts Court to stop Trump needs to understand that it may very well not happen.
The fate of the Republic is still very much in doubt.
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