Ten stumbling blocks, maybe

Benjamin Wittes in the Atlantic tells us that last week he told a small audience that it was too late to fire Mueller; now he wonders if he was too optimistic.

Whitaker is the kind of bad dream from which career Justice Department officials wake up at night in cold sweats. He’s openly political. The president is confident in his loyalty and that he won’t recuse himself from the investigation—notwithstanding his public statements about it and his having chaired the campaign of one of the grand jury witnesses. There are legal questions about his installation at the department’s helm. And he’s known as the White House’s eyes and ears at Justice.

It’s bad—very bad.

But, he says, he still thinks – more tentatively – that there are a number of real obstacles to interfering. He lists ten of them.

One is that Mueller has shared some of his findings with state prosecutors, which means Trump and Whitaker can’t mess with them. Another is that he has a lot. A third is that he can talk. He’s been quiet all this time and that would make it even more of a wallop if he did talk.

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. 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. If Whitaker or his successor seeks to frustrate the probe, Mueller can spend down those huge reserves of credibility.

Four, the midterms mean the Democrats can investigate the crap out of everything. Fifth, a permanent AG has to be confirmed…but that’s perhaps his least persuasive example, because it relies on Republican senators having scruples, and we’ve seen all too much of how that goes.

Sixth is the culture of the Justice Department; seventh is the people in the Justice Department.

One indication that the system has held so far is that we have not seen mass resignations or resignations in protest over matters of principle. That will change if Whitaker or his successor moves against the investigation in a fashion that officials regard as unacceptable. Rosenstein, for example, has assiduously defended and protected the Mueller investigation, staking his personal credibility on the endeavor. Will he and Wray, who has to think about how the FBI rank and file will react to his sitting on his heels while a major FBI investigation is buried, really do nothing if Whitaker impedes Mueller? Even if they are inclined to passivity, the norms and expectations of the department will demand more of them, particularly if underlings threaten to resign if they do not act.

HmmmI don’t know, I think that one’s doubtful too. The FBI apparently has a solid contingent of rabid Clinton-haters, and law enforcement people tend Republican, so…

Eight is that Whitaker will be briefed and will have to take responsibility, and that could change him. Ok, but there have been some very crooked AGs. John Mitchell anyone?

Nine, the public cares, ten, 1-9 work together.

I wish us all luck.

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