UPDATED: Nadler's Subpoena

There's been a fair bit of commentary regarding House Judiciary Chairman's Jerrold Nadler's subpoena for the full, unredacted Mueller Report. Nevertheless it may be helpful to go over the issue a bit more.

To begin with, the Special Counsel as we currently know it follows from provisions in the Ethics in Government Act. Those provisions were allowed to expire in 1999, but were replaced by the current DoJ Special Counsel regulations (28 CFR 600). While the previous Independent Counsel provision under the Ethics Government Act had been upheld by the Supreme Court (with only Justice Scalia dissenting), it had come under fire by both Democrats and Republicans

Justice Antonin Scalia provided critiques of the Act, based on both Constitutional law and the potential for harm in practice, in his dissenting opinion in the case Morrison v. Olson. Justice Scalia, a judicial conservative, noted that the U.S. Constitution granted consolidated power to enforce the law exclusively to the Executive Branch. The Act extended the power to initiate criminal investigation to the United States House of Representatives and the Senate, which Scalia viewed as a violation of the separation of powers. He believed that the House of Representatives' investigation through the use of a special prosecutor "[arose] out of a bitter power dispute between the President and the Legislative Branch".

Even some Congressmen who had voted for the Act criticized it privately, leading to speculation that "if it had been an anonymous vote, it would have been voted down two-to-one". ...

Specific provisions of the Act have faced criticism as either too weak or too strong. The Special Prosecutor created by Title VI was empowered to pursue investigations with minimal evidence, and was required to pursue any accusation that the District Attorney could not disprove. It allowed for legal harassment of political opponents, even in cases that prosecutors stated they would have dropped in any other federal court. ...

Whither The Russia Hoax Witchhunt?

I had barely finished digesting the Midterm election news yesterday morning and begun wondering how the new lay of the land might affect the Russia Hoax, when events began unfolding. President Trump has never been mistaken for someone who dithers when action is called for. He quickly requested and received the resignation of AG Jeff Sessions, then inserted Sessions' Chief of Staff, Matthew G. Whitaker, as Acting AG, pending the naming of a permanent replacement (rumors are already circulating that Janice Rogers Brown is under consideration).

The move had been anticipated since at least August, when key GOP senators gave Trump public backing for the change: Key Republicans Give Trump a Path to Fire Sessions After the Election. As Bloomberg reported, both Lindsay Graham and Chuck Grassley, both of whom had previously opposed firing Sessions, publicly approved removing Sessions and even provided a time frame for action:

The pivotal message on Thursday came from Senator Lindsey Graham of South Carolina, who oscillates between criticizing many of the president’s policies and defending a president who sometimes invites him to go golfing at a Trump-branded resort.

“The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham told reporters.

But he added that forcing out Sessions before November “would create havoc” with efforts to confirm Trump’s Supreme Court nominee Brett Kavanaugh, as well as with the midterm elections on Nov. 6 that will determine whether Republicans keep control of Congress. 

Senator Chuck Grassley of Iowa, the Judiciary Committee’s chairman, also changed his position on Thursday, saying in an interview that he’d be able to make time for hearings for a new attorney general after saying in the past that the panel was too busy to tackle that explosive possibility.

Even at this stage, with an Acting AG, the legal landscape appears to have changed drastically. What's more, this drastic change takes effect immediately--while the Republicans still control the House.