Senate Republicans are searching for ways to defuse a fight over legislation protecting special counsel Robert Mueller that is complicating their ability to confirm President Trump’s judicial nominees.
The impact of Sen. Jeff Flake’s (R-Ariz.) threat to vote against any of Trump’s court picks unless he gets a vote on the Mueller bill has been on full display this week, with Republicans leaning on Vice President Pence to break a tie on a procedural vote and several nominations expected to languish in the Senate Judiciary Committee absent an agreement.
Leadership is privately measuring support for the Mueller bill and a possible vote on the legislation to satisfy Flake and get him to drop his opposition to judicial nominees.
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Sen. John Cornyn (Texas), the No. 2 Republican in the chamber, said Wednesday evening that GOP leaders have whipped the bill, after telling reporters earlier this week that leadership is trying to figure out what sort of support the bill has and what the “outcome” of a vote on the legislation might be.
“I think we haven’t really figured out how to deal with that,” Cornyn said on Wednesday, referring to Flake’s push for a vote.
Conceding to Flake’s demands isn’t without potential headaches for leadership, even if a vote on the bill falls short. The measure would put a spotlight on GOP infighting and eat up days of floor time if opponents object to bringing it up quickly as Republicans face a chaotic end-of-year floor schedule.
Cornyn noted that senators are currently juggling the Yemen resolution, government funding and the border wall fight, adding, “We’ve got to get all that stuff done. I’m not sure how it’s all going to fall into place.”
Trump has repeatedly lashed out at Mueller, who is investigating Russia’s interference in the 2016 presidential election and possible collusion between Moscow and the Trump campaign.
The president on Wednesday characterized the Russia investigation as the “angry Mueller gang of Dems” and said that “this is our Joseph McCarthy Era.” In a Tuesday tweet he called the probe a “witch hunt” and a “total disgrace.”
Trump has stepped up his Twitter attacks on Mueller in recent days amid several revelations, including the special counsel’s assertion that former Trump campaign chairman Paul Manafort had violated his plea agreement.
New reports emerged on Tuesday that Manafort’s attorney had been sharing information with lawyers for Trump about Manafort’s cooperation with the Mueller probe. Trump told the New York Post on Wednesday that a pardon for Manafort was not “off the table.”
But Trump’s uptick in his Mueller attacks has yet to quell steep GOP opposition to the legislation, which Republicans argue is unnecessary because, they say, Trump will not try to fire Mueller. They also say the bill has constitutional issues.
Sen. Orrin Hatch (R-Utah), a former chairman and current member of the Judiciary Committee, said a vote isn’t necessary.
“I don’t think we need to do that. I would prefer we not do that,” Hatch said Wednesday, adding that giving the bill a vote would just “cloud everything up.”
Flake, joined by Sens. Christopher Coons (D-Del.) and Cory Booker (D-N.J.), tried to get consent to bring the legislation up for a vote on Wednesday. He questioned why his colleagues weren’t “up in arms” over the president’s rhetoric.
“With the president tweeting on a regular basis, a daily basis … demeaning and ridiculing him in every way, to be so sanguine about the chances of him being fired is folly for us,” Flake, who’s retiring in early January, said from the Senate floor.
But he ran into a procedural roadblock from Sen. Mike Lee (R-Utah), who blocked a vote on the measure by citing the late Justice Antonin Scalia in arguing that the legislation isn’t constitutional.
“As Justice Scalia explains, we cannot convert an office like this one … without creating a de facto fourth branch of government, fundamentally undermining the principles of the separation of powers that is so core to our liberty,” said Lee, who voted against the bill in committee.
The resolution, which the Judiciary Committee advanced earlier this year, would protect Mueller, or any other special counsel, in the event he is fired. It also would codify Justice Department regulations that say only a senior department official could fire Mueller or another special counsel.
Additionally, the measure would give a special counsel an “expedited review” of their firing. If a court determines that it wasn’t for “good cause,” the special counsel would be reinstated.
The bill has stalled amid opposition from GOP leadership.
And, even as Cornyn says leaders are whipping the bill, McConnell is giving no indication that he has changed his mind on the matter.
“This is a solution in search of a problem,” McConnell told reporters during his weekly leadership press conference. “The president’s not going to fire Robert Mueller, nor do I think he should, nor do I think he should not be allowed to finish. We have a lot of things to do to try to finish up this year without taking votes on things that are completely irrelevant to outcomes.”
Sen. John Thune (R-S.D.) said he believed most of the Republican conference remains opposed to allowing a vote on the bill.
Asked about the potential for Trump to direct acting Attorney General Matthew Whitaker to fire Mueller, White House press secretary Sarah Huckabee Sanders told reporters on Tuesday that Trump “could’ve taken action at any point and he hasn’t, so we’ll let that speak for itself.”
But Flake is leveraging Republicans’ 51-49 majority to try to force a concession from leadership.
It’s not the first time he has tried to force McConnell’s hand. Flake previously vowed to oppose judicial nominations until he got a vote on a tariffs bill and backed down after leadership gave him a largely symbolic vote.
Flake said Wednesday that he remains committed to opposing judicial nominees but appeared to be in the dark about whether leadership will ultimately give in.
“They seem to be reluctant to hold the vote,” Flake said.
If Republicans want to max out the number of nominations they can clear this year, they’ll need to detangle the stalemate with Flake. Republicans have placed a premium on confirming judicial picks, viewing it as their best shot to have a long-term impact on the direction of the country, including confirming a record number of circuit court judges.
Pence was forced to break a tie to end debate on Thomas Farr’s district judge nomination after Flake sided with all Democrats in opposing the nominee. And Farr’s nomination isn’t in the clear yet, with Sen. Tim Scott (R-S.C.) saying he has not made a decision on supporting him in a final confirmation vote. If GOP leadership had Flake on their side, they could afford to lose Scott.
Meanwhile, Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary Committee, canceled a Thursday Committee meeting after he was unable to get an agreement with Flake. Republicans hold an 11-10 majority on the panel, meaning they need Flake to clear nominations unless they can get help from Democrats.
“We can vote on all the people who cleared the committee,” Cornyn said. “But in terms of getting a vote out of committee we need his help.”