Nixon court case loophole puts Mueller investigation in danger

Will Robert Mueller subpoena President Trump? Or will Matthew Whitaker preempt him by limiting the scope of the special counsel investigation?

A little discussed provision within the landmark Supreme Court decision in United States v. Richard Nixon, the Watergate era case that limited the scope of executive privilege in the face of a criminal trial subpoena, arguably allows the attorney general to “amend or revoke” the authority of the special counsel with impunity. The Supreme Court expressly stated that it is “theoretically possible” for the attorney general to amend or revoke the regulation defining the authority of the special prosecutor.

Under this directive, Whitaker arguably holds the lawful power to drastically curtail the scope of the special counsel investigation. Rather than remove Mueller and set off a constitutional crisis, Whitaker could simply amend the grant of jurisdiction that Deputy Attorney General Rod Rosenstein gave Mueller last year by removing the authority to look into “any matters that arose or may arise directly” from the investigation.

{mosads}Such a move would effectively eviscerate the ability of Mueller to prosecute any possible criminal acts involving money laundering while leaving the primary Russia investigation untouched. At the very least, it might force Mueller to hand off such an investigation to the respective United States attorney. This would more directly place those federal matters under the behind the scenes control of Whitaker as the interim attorney general, which is still very much a net win for Trump.

Limiting Mueller to only investigate possible Russian collusion before the 2016 election is a fight that the president would undoubtedly rather have. A legal battle over Russian collusion is be preferable to one involving obstruction of justice or money laundering, as the “no collusion” mantra repeated by Trump is firmly entrenched within the public conscience, and there is clearly not much appetite for impeachment within the Senate.

Trump holds plausible deniability relative to his personal participation in any alleged Russian conspiracy, even with the anticipated indictments of Roger Stone and Jerome Corsi, cooperation by Paul Manafort and Michael Cohen, and the infamous Trump Tower meeting with Russian lawyers. The likelihood that Trump can plausibly deny a paper trail money laundering allegation against the Trump Organization is not nearly as clear, as Mueller granted its chief financial officer immunity to cooperate as a witness.

Contrast the legitimacy that the Nixon decision provides to restrain the scope of the special counsel investigation to its “true purpose” with the maelstrom that Whitaker would unleash upon his outright dismissal of Mueller. Still, Whitaker needs the threat of outright dismissal to make curtailment seem more reasonable. Perhaps this better explains the vehement opposition of Senate Majority Leader Mitch McConnell to the otherwise bipartisan bill in his chamber to protect the special counsel.

Not only does the Senate legislation limit the dismissal of the special counsel to instances of “misconduct, dereliction of duty, incapacity, conflict of interest or other good cause,” but it also presciently specifies only an attorney general “who has been confirmed to the position by the Senate” or the most senior confirmed Justice Department official “who is not recused” may dismiss the special counsel. Whitaker cannot satisfy either requirement, but in the absence of such legislation, he holds substantial legal cover to quietly but overtly restrict the scope of the investigation pursuant to the grant of authority in the Nixon decision.

Such a strategy would also allow Whitaker to openly embrace his prior public comments on the special counsel investigation. As Whitaker argued in the infamous opinion column he wrote last year, “It does not take a lawyer or even a former federal prosecutor like myself to conclude that investigating Donald Trump’s finances or his family’s finances falls completely outside of the realm of his 2016 campaign and allegations that the campaign coordinated with the Russian government or anyone else. That goes beyond the scope of the appointment of the special counsel.”

The Nixon loophole permits Whitaker to give the veneer of legitimacy to the political view of Trump, with the intended benefits of shielding the president and his business from the perilous money laundering aspects of the special counsel investigation. This is what makes the loophole so dangerous, and why it is so important for the Senate to protect Mueller.

Chris Gagin is an attorney and director of Defending Democracy Together.