According to a friend of former FBI Director James Comey, the dismissal of Attorney General Jeff Sessions may not matter. He says it is probably too late to stop the Mueller investigation.
Writing at the Atlantic, Lawfare editor Benjamin Wittes gave ten legitimate reasons why Trump’s firing of Sessions was “too little, too late.”
He said that after Tuesday’s shift of investigatory power to House Democrats, Trump’s window of opportunity is gone:
“Eighteen months ago, I said, President Donald Trump had an opportunity to disrupt the Russia investigation: He had fired the FBI director and had rocked the Justice Department back on its heels. But Trump had dithered. He had broadcast his intentions too many times. And in the meantime, Mueller had moved decisively, securing important indictments and convictions, and making whatever preparations were necessary for hostile fire.”
Although Trump’s appointment of Matt Whitaker as acting Attorney General is extremely problematic, it probably won’t matter anyway.
“I am still, if only tentatively, of the belief that the prospects for interference are dimmer than fear and panic and another Trump-busted norm have us imagining,” Wittes wrote.
He made clear that Mueller has referred some Justice Department matters, such as the Michael Cohen situation in New York, to other investigatory agencies. Mueller has also let other agencies handle matters involving core questions of Russian interference in the U.S. elections, such as the Maria Butina and Elena Khusyaynova prosecutions.
“The result of this strategic step that Mueller is relatively invulnerable to the charge of any kind of power grab or mission creep,” Wittes said.
He then hinted that Mueller’s investigation has probably already reached its conclusions anyway. This means that even if Whitaker tries to shut down Mueller, the special counsel still would be able to speak out about what his investigation has discovered.
“The day that Mueller holds a press conference or stands before cameras and declares that his investigation is facing interference from the Justice Department will be a very big day, perhaps a game-changing day,” Wittes explained. “If the department suppresses his report, he has the capacity to, as James Comey did after his firing, testify before Congress about what happened. Mueller has not hoarded power or jurisdiction, but he has hoarded moral authority.”
Wittes said Trump would face a “perfect storm” if he tries to bury the months of work Mueller’s investigators have put in. He said that “Every element operates in an ineffable combination of bureaucratic maneuvering, congressional action, journalism, personality, and public pressure.”
He then concluded:
“And in this dangerous moment—and Whitaker’s installation does create a profoundly dangerous moment—the combined effects here will be a powerful defense against misdeeds.”
“I stand by my conclusion. Here are 10 reasons to think that Whitaker may have less capacity to foil Mueller than the current moment—and his formal powers—may suggest.”
- First, Mueller has spread the wealth around. Other federal agencies are involved.
- Second, the investigation has already progressed very far. Almost all evidence has already been obtained.
- Third, Mueller does not have to remain silent. He will be allowed to publicly testify.
- Fourth, the midterms matter—and they mean investigations by House Democrats.
- Fifth, the confirmation process for the attorney general still matters. A new attorney general who favors Trump would probably not be confirmed by the Senate.
- Sixth, corrupting the Justice Department is harder than you think. There is institutional integrity that can’t be corrupted by one person.
- Seventh, senior Justice Department officials, both career and political, can draw lines. They have power and can decide what needs to be done.
- Eighth, Whitaker will get briefed and assume responsibility for the department. He may, if he does take over Mueller probe oversight, decide that he should not interfere.
- Ninth, the public actually cares, as shown by the hundreds of public demonstrations this week after Sessions was fired.
- Tenth, these points all work in tandem with one another. The whole is greater than the sum of the parts.
In short, Donald Trump may have lashed out in frustration and anger and fired Jeff Sessions, but he may also be powerless to stop the Mueller investigation, or to prevent its findings from becoming public.