Chairman Nadler Statement on Resolution Authorizing Subpoena for Acting Attorney General Matthew Whitaker

Feb 7, 2019 Issues: Government Oversight

Washington, D.C. – Today, House Judiciary Chairman Jerrold Nadler (D-NY) delivered the following opening remarks, as prepared, on the Resolution authorizing the Chair to issue a subpoena—if needed—to Acting Attorney General Matthew G. Whitaker to secure his appearance and full testimony to the Committee: 

"This resolution is important, although I hope not to have to use it.  It authorizes the issuance of a subpoena to Acting Attorney General Matthew Whitaker to compel both his appearance and his cooperation at tomorrow’s Department of Justice Oversight hearing. 

"The resolution does not cause the subpoena to be issued.  I hope and expect that this subpoena will not be necessary—but unfortunately, a series of troubling events over the past few months suggest that we should be prepared.

"On November 30 of last year, shortly after his appointment as Acting Attorney General, Mr. Whitaker, on a phone call with Oversight Committee Chairman Elijah Cummings and me, committed to appearing before this Committee for a January oversight hearing on the Department of Justice.

"In the weeks that followed, however, Department personnel tried to convince us that no such promise had been made, that the hearing was unnecessary, and that, at the very least, we should excuse the Department from an oversight hearing until some undefined period after the Senate confirmed Mr. Whitaker’s replacement.

"These delay tactics should be unacceptable to Democrats and Republicans alike.  They are certainly unacceptable to me.  We told Mr. Whitaker as much over the course of the next few weeks, as we worked to secure a commitment for his appearance this Friday, February 8—not quite the January hearing he originally promised, but a reasonable accommodation.

"Nevertheless, as late as last week, we received reports that some in the Department were counseling Mr. Whitaker that he does not need to show up on Friday.  Again, such a development should be unacceptable to Democrats and Republicans alike.

"There is an additional concern.  For the first two years of the Trump Administration, witnesses have often been allowed a free pass on tough questions. 

"For example, when former Attorney General Sessions testified before this Committee in 2017, he repeatedly refused to answer questions on the basis that he was “not able to comment on the conversations or communications the Department of Justice top people have with top people at the White House,” because the President might want to invoke executive privilege as to the content of those conversations at some point in the future.

"This excuse is, of course, ridiculous.  The President can choose to invoke executive privilege and instruct a government witness not to answer a specific question.  The witness cannot speculate that the President might want to assert executive privilege and refuse to answer a question on that basis. 

"The witness can also invoke one of the very few other privileges recognized by Congress, including the Fifth Amendment right against self-incrimination.  Otherwise, the Committee can and should expect a direct answer to any question. 

"To that end, on January 22, I provided Mr. Whitaker with a list of questions we may ask him involving communications he may have had with the White House.  I gave him these questions well in advance—because he deserves adequate time to consult with the White House counsel about executive privilege. 

 "In that letter, I asked Mr. Whitaker to notify the Committee if the President chose to assert executive privilege with respect to a specific question or questions, and of any privilege issues that he might choose to raise no later than 48 hours prior to the hearing.  That deadline has come and gone and we have not heard from the Acting Attorney General.  Therefore, I expect the Acting Attorney General to answer all of these questions without equivocation and to the best of his ability.

"In order to help the Acting Attorney General to meet these expectations, I am asking the Committee to pass this resolution—which will authorize me to issue a subpoena to compel Mr. Whitaker’s testimony tomorrow if he fails to meet this obligation.

"To be clear, this resolution merely authorizes the subpoena.  If Mr. Whitaker appears in the hearing room, as scheduled, and if he provides direct answers to our questions, then I have no intention of ever issuing this subpoena.  If he does not, then we will have the tools we need to ensure that we may adequately meet our own responsibilities.

"My staff and I cannot have been more transparent about our goals here.  We explained the possibility of this subpoena to Mr. Whitaker months ago.  We provided him with key questions weeks ago. 

"We consulted with Ranking Member Collins and provided him with a copy of this subpoena days ago—long before the two-business-day deadline contemplated by our Committee rules—so that we could schedule this markup if necessary.

"In fact, we are only voting on this resolution because the Ranking Member asked us for an up-or-down vote on the matter—a courtesy we were not afforded in the last Congress, when Democrats were in the minority.

"Congress has a constitutional responsibility to conduct oversight of the executive branch—and a key part of that work is to hold government witnesses to a basic standard of conduct, applicable to Democrats and Republicans alike. 

"When we invite officials to testify before this Committee, they have to appear.  When we ask them questions, they have to provide us with answers—or provide us with a valid and clearly articulated reason to withhold certain information. 

"Without the threat of a subpoena, I believe it may be difficult to hold Mr. Whitaker to this standard. 

"Accordingly, and in an abundance of caution, I urge my colleagues to support this resolution." 

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