Jeff Flake is also concerned, tweeting yesterday that he would ask for unanimous consent in the Senate next week for a vote on the bill he wrote last year with Chris Coons. That one would codify DOJ regs that say only a Senate-confirmed Justice Department official can terminate a special counsel and would give the latter a chance at judicial review of the decision. POTUS took the news with his usual poise and good cheer:
Jeff Flake(y) doesn’t want to protect the Non-Senate confirmed Special Counsel, he wants to protect his future after being unelectable in Arizona for the “crime” of doing a terrible job! A weak and ineffective guy!
— Donald J. Trump (@realDonaldTrump) November 9, 2018
Now here’s Susan Collins, one of the heroes of the Kavanaugh wars, backing Flake up. Thanks to Tuesday’s results, I suspect the days of Trump caring what she or Murkowski thinks about anything are coming to an end.
Unless the vote counts in Florida and Arizona that are going on right now end up tilting the wrong way, I mean.
“It is imperative that Special Counsel Robert Mueller be allowed to complete his investigation into Russian influence efforts during the 2016 elections.
“Under Deputy Attorney General Rod Rosenstein’s leadership, the Special Counsel has been given all of the resources that he has needed to follow the evidence wherever it may lead. I am concerned about comments that Acting Attorney General Matthew Whitaker has made regarding the Special Counsel and the parameters of his investigation. Although Mr. Rosenstein remains in charge of day-to-day oversight, Mr. Whitaker has the authority to intervene at any time in contrast to the recusal of former Attorney General Jeff Sessions.
“For these reasons, I believe that we should bring to the Senate floor legislation that would put restrictions on the ability of President Donald Trump to fire the Special Counsel. This bill would codify the restriction that the Special Counsel can only be fired for good cause and in writing. The bill further specifies that only a Senate-confirmed Justice Department official could remove the Special Counsel. Acting Attorney General Whitaker is not a Senate-confirmed official.
“Senate debate and passage of this bill would send a powerful message that Mr. Mueller must be able to complete his work unimpeded.”
There are *at least* 51 votes for a bill like that in the Senate. All 49 Democrats would vote yes; the red-staters like Joe Manchin and Claire McCaskill have pretty much all either been safely reelected or voted out and now enjoy the freedom that only a lame duck knows. Put them all in the yes column, and of course add Collins and Flake too. Might as well go ahead and add Lisa Murkowski while you’re at it. And Bob Corker, who’s also retiring. And Ben Sasse, who votes with Trump on most things but isn’t going to cover for him on a good-government measure like this. Now you’re at 54, within spitting distance of a filibuster-proof majority. You might get Dean Heller and Orrin Hatch, both lame-ducks themselves, as numbers 55 and 56. How about Jon Kyl, McCain’s replacement, whose time in the Senate is also limited? Let’s count him as 57.
Things start getting hard from there, though, as you move from purple-state Republicans to those who are either from deep red states or are up in 2020 and won’t want to make enemies of the GOP base back home. And the closer you get to 60, the more each vote from the remaining pool can be said (logically or not) to have been “crucial” or “decisive,” risking even more political pain for the person who cast it. Could they get Cory Gardner, who’s running for reelection in a state won by Hillary two years from now? Could they get Richard Burr of North Carolina, head of the Senate Intel Committee that’s been investigating Russiagate parallel to Mueller for 18 months? What about Ron Johnson, who hails from the purple state of Wisconsin but doesn’t face voters again until 2022? What about Pat Toomey, who’s in the same boat in Pennsylvania? Rob Portman is a centrist-y Republican who might consider supporting pro-Mueller legislation — but Trump now owns his home state of Ohio.
Assume you get two more out of that group. Which Republican wants to cast the fateful 60th vote to tie Trump’s hands, knowing full well that there are strong arguments that any such bill would be unconstitutional? Imagine, say, Gardner gambling his political career to protect Mueller and then having the conservative Supreme Court strike down the new law on grounds that it violates separation of powers, attempting to limit the president’s authority over executive-branch personnel.
Time is of the essence for the Collins/Flake faction since none of the incoming Republican senators (Mike Braun, Josh Hawley, or Rick Scott) are about to knife Trump so soon after the midterms by backing a bill to tie his hands. This process will become even harder in January. But it’s dead on arrival either way, since (a) the Republican House majority would block it in the few weeks it has left even if it passed the Senate tomorrow and (b) it requires one man’s approval to advance the ball in the Senate, and that man … does not approve:
The Republican leader also dismissed demands by Democrats and some Republicans to quickly pass legislation approved by the Senate Judiciary Committee that would make it harder to fire the special counsel.
“Like I’ve said before, it’s not necessary. The Mueller investigation’s not under threat,” McConnell said. “The President said repeatedly he’s not going to dismiss the Mueller investigation. He’s said repeatedly it’s going to be allowed to finish. That also happens to be my view.”
Asked why he was so confident, McConnell said: “The President’s certainly expressed his point of view about how he feels about the investigation, but as you can imagine we speak frequently. There’s never been any indication that he wants to dismiss Mueller or the investigation. It’s going to be allowed to finish.”
His reasoning is pure garbage. It’s true that it would be irrational for Trump to fire Mueller at this stage, as David French and Benjamin Wittes explained at length elsewhere today. The new Democratic House would impeach him; other prosecutors, federal and state, would pick up where Mueller left off; Mueller himself might do a round of interviews revealing what he discovered. Trump would achieve virtually nothing by it except the depletion of his own political capital. But analyses that approach his options from the standpoint of rationality are always risky. If Mueller turned around tomorrow and indicted Donald Trump Jr for lying to federal investigators, how much of your life’s savings would you gamble on POTUS following French’s and Wittes’s advice by doing the rational thing and holding back? Collins and Flake know what I mean. That’s why they want a legislative check, however uncertain its constitutionality.
McConnell’s ducking the subject because he doesn’t want a brawl with the White House just as he’s about to get a redder Senate and potentially a raft of cabinet vacancies to fill. There’s destined to be friction soon between Trump and his caucus when one of his nominees inevitably runs into trouble. No need to exacerbate it by poking the bear over Mueller. Just hope and pray that the bear doesn’t maul Mueller before the Russiagate probe concludes. You can count on bears to behave rationally, can’t you?
Exit quotation from Rod Rosenstein:
Deputy Attorney General Rod Rosenstein just called Matt Whitaker “a superb choice for attorney general,” saying Whitaker “certainly understands the work, understands the priorities of the department.” Then I asked him if he’s worried at all about the Mueller probe. He walked off.
— Mike Levine (@MLevineReports) November 9, 2018