Whitaker may be out of the DOJ, but he’s not out of the risk of being charged with perjury

Guardian News / YouTube Matthew Whitaker testifies before House judiciary 1551203696.jpg...
Guardian News / YouTube

Trump’s firing of James Comey isn’t the only thing that could earn him an obstruction charge. In fact, it’s not even close to the top of the list. The clearest example might be Trump’s stepping in to create a false narrative around the Trump Tower meeting by dictating a fake alibi to his son from Air Force One. But the list also includes multiple instances of suborning perjury by talking to witnesses before their testimony to Congress or the special counsel, and Trump pressuring others involved in some aspect of the investigation. One item in particular that has caught the attention of the House Judiciary Committee concerns Trump’s communications with former acting attorney general Matthew Whitaker.

As the Wall Street Journal reports, the Judiciary Committee “believes it has evidence” that Trump asked Whitaker if US attorney Geoffrey Berman, who had recused himself from Southern District of New York investigations into Michael Cohen and other aspects of the case, might “regain control” of the investigation. The reason that Berman recused himself was simple enough. At the time of his recusal, Berman was a fresh interim appointment to the role, but more importantly he is a former partner of Rudy Giuliani, a big donor to the Trump campaign, and was put into the US attorney slot by Trump.

But since what started as a look into Cohen has expanded into a look at how Trump managed payoffs for at least two women, multiple LLCs used to hide both payoffs and contributions, and possibly a broader review of the Trump Organization, it’s become clear that the SDNY could be a larger threat to Trump continuing to reside in Washington than the special counsel’s office. Which makes Trump’s desire to have a pal in charge of that office both understandable and problematic.

At the moment, it’s not clear that Whitaker acted on Trump’s request either by speaking with Berman or by checking into whether it would be possible to shuffle those involved in the investigation. However, what the Judiciary Committee would like to know is whether Trump made the request, and how Whitaker responded. In testimony last week, Whitaker claimed that “At no time” had Trump asked him to make “any promises or commitments” regarding any investigation. If, as the New York Times reported, Trump pressured Whitaker to put Berman back in charge of the SDNY investigation, then not only would Trump seem to be guilty of obstruction, Whitaker would definitely be guilty of perjury.

Trump has rearranged the chairs at the Department of Justice to take all those involved in initially opening the special counsel investigation out of their roles and completely out of the government. With reports that the official investigation under Robert Mueller will soon turn in its paperwork, and absolutely no commitment from new attorney general William Barr that any information at all will reach Congress or the public, the investigation taking place at the SDNY would seem to represent the greatest threat to Trump.

At a bare minimum, the partial immunity granted to Trump Organization CFO Allen Weisselberg suggests that Trump’s long time money man is being compelled to talk about the source of funding for Cohen’s payoffs and Trump’s knowledge of those transactions. Should Weisselberg’s immunity be more far-reaching, it would be one of several indicators that the SDNY’s investigation is looking at broader aspects of the way Trump did business. In many ways, the real extent of the SDNY investigation is at least as mysterious as that being conducted by the special counsel—and perhaps more opaque to Trump.

Just the idea that Trump attempted to overturn the leadership of the SDNY investigation could help fuel interest from the House into expanding their own investigation into Trump’s business. After all, when someone in the midst of a criminal investigation draws a “red line” then attempts to take steps to enforce it, looking at what’s on the other side of that line seems pretty compelling.

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