Whitaker's appearance became questionable Thursday after the panel, led by Democratic Rep. Jerrold Nadler of New York, approved a tentative subpoena to ensure that Whitaker would appear and answer questions. Whitaker responded by saying he wouldn't appear unless the committee dropped its subpoena threat, which he derided as an act of "political theater." After conversations with the committee, a department spokeswoman said, Nadler agreed that the committee would not issue a subpoena tomorrow if Whitaker voluntarily appears at the hearing.
"In light of that commitment, Acting Attorney General Whitaker looks forward to voluntarily appearing at tomorrow's hearing and discussing the great work of the Department of Justice," said spokeswoman Kerri Kupec.
Nadler did not detail his discussions with the department but tweeted Thursday evening: "CONFIRMED: Acting Attorney General Whitaker will appear tomorrow morning at 9:30am." Whitaker's testimony has been highly anticipated by Democrats eager to press him on his interactions with President Donald Trump and his oversight of special counsel Robert Mueller's investigation into potential ties between Russia and the Trump campaign. Whitaker oversees the Mueller probe.
Thursday's committee vote didn't issue a subpoena but allowed Nadler to do so if Whitaker was uncooperative. Nadler said he hoped not to have to use the subpoena, but "a series of troubling events over the past few months suggest that we should be prepared." Nadler said that as late as last week the committee had received reports that some at the department were counseling Whitaker not to appear.
Whitaker insisted Thursday that was not the case, saying he had "devoted considerable resources and numerous hours to my preparation" and was looking forward to the hearing. He criticized the committee for prematurely and unnecessarily authorizing a subpoena for him even though he had agreed to appear.
Republicans on the committee also strongly opposed Nadler's resolution to approve a subpoena if necessary. They said it was not necessary because Whitaker was already appearing voluntarily. Democrats are calling Whitaker to testify even though his time leading the Justice Department is soon ending, with the Senate expected this month to confirm Trump's nominee for attorney general, William Barr. The Senate Judiciary Committee voted along party lines Thursday to approve Barr's nomination, sending the pick to the full Senate.
One of Nadler's main concerns has been that Whitaker will assert executive privilege to avoid answering questions at the hearing. He noted that previous Trump administration officials, including former Attorney General Jeff Sessions, declined to answer questions about conversations with the White House during testimony, saying the president might want to claim executive privilege on those conversations in the future. Nadler said that is "ridiculous" and administration officials must provide the committee with answers or a better excuse to withhold them.
"Without the threat of a subpoena, I believe it may be difficult to hold Mr. Whitaker to this standard," Nadler said earlier Thursday. In a letter to Nadler after the vote, Assistant Attorney General Stephen Boyd laid out a lengthy legal argument for asserting such executive privilege, saying administration officials from both parties have declined to answer questions about conversations they have had with the president.
"Rather than conducting appropriate oversight into the department's programs and activities, the committee evidently seeks to ask questions about confidential presidential communications that no attorney general could ever be expected to disclose under the circumstances," Boyd wrote.