When you’ve lost Ted Cruz on your strategy to frustrate Senate Republican leadership, you’ve really gone rogue. Politico reports the frustration bubbling out onto the record among Jeff Flake’s colleagues over his demands for a protect-Mueller bill vote, even among some who support Flake’s end goal. Flake is singlehandedly torpedoing Mitch McConnell’s strategy of clearing the judicial nomination backlog before the end of the year, and Flake’s friends are not keeping quiet over their fury.
Given his own track record in infuriating his caucus, Cruz’ public criticism should sting the most, though:
“It is not productive,” said Sen. Ted Cruz (R-Texas), who has also been known to cause major headaches for McConnell. “One of the greatest substantive victories that we have delivered for the American people the last two years is nominating and confirming strong constitutionalist judges. For a Republican senator to be blocking that is frustrating the promises we made to the voters.”
Thom Tillis has offered some support for a protect-Mueller bill but still took a swipe at Flake for hypocrisy. He’s now blocking judicial nominees he supported in committee, Tillis says, for something that won’t become law under any circumstances anyway:
Sen. Thom Tillis (R-N.C.), a leading Farr backer and co-author of the Mueller protection bill, acknowledged that “you can’t not be frustrated when you see nominees that were voted out of committee with Senator Flake’s support now being held up. On, incidentally, a policy matter I support.”
“I just don’t see any path to success, and in the meantime we’re holding up a number of qualified judges that Sen. Flake voted out of committee,” Tillis added.
Undeterred, Flake announced yesterday that he will demand a vote on the bill next week. That’s the only way to resolve the standoff, Flake insists, saying that the bill is needed more now after Trump fired Jeff Sessions:
Flake said GOP leaders were “hoping to resolve” the stalemate on judges but the only solution, in his view, was a vote on the Mueller bill on the Senate floor.
“We need to pass the bill. Whether it passes the House or not I’m not in control of that, but we need to pass it out of the Senate,” he said, adding separately that “I think it’s important enough, particularly after the firing of the attorney general, to use the leverage I have.” …
“There are a number of judges, one of whom is from Arizona who is non-controversial, there are a number of these that have bipartisan support, I hope that we can move them through. But the priority has to be this bill to protect the special counsel,” he said.
The Senate Judiciary Committee has passed legislation that would protect Mueller, or any other special counsel, in the event he is fired, but the bill has stalled amid opposition from GOP leadership.
In other words, Flake has no intention of backing down from his obstruction. Mike Pence had better make plans to stick around Washington if McConnell decides to push these nominations to the floor with or without the Judiciary Committee making its recommendations. He’s already had to cast a couple of tie-breakers thanks to Flake’s stunt, and it looks like it might be a long way to Christmas if it continues.
One might think the silliness of this exercise would exhaust even Flake. Rich Lowry wrote at length at National Review pointing out the obvious about the unconstitutionality of the bill Flake wants to pass, but also the obvious futility of firing Robert Mueller at this point. Firing Mueller only frees him, especially with Democrats in charge of the House after January 3rd:
Yes, there’s lots of criminal action in the Mueller probe — the Paul Manafort trial, the various plea deals — but current Justice Department guidance says that the president himself can’t be indicted. That means that all Mueller can do regarding the president directly is produce a report that may well instigate congressional action, up to and including an impeachment probe. This preliminary investigative work should be the work of Congress alone, without the help of someone nominally working for the president he’s targeting.
Indeed, if you want investigations of the president that the president can’t stop or have influence over, you have to run them out of Congress. With the Democratic takeover of the House, such congressional probes are on their way.
This is a normal working of our system that doesn’t require any extra constitutional exertions. Insofar as Mueller has been “protected” to this point, it has been via just this sort of basic political accountability.
Trump has huffed and puffed about Mueller, yet cooperated — in some instances, quite fulsomely — with his investigation. That could change at any time. But firing Mueller would lead to dire political consequences and now fail to achieve its end of truly shutting him down. If cashiered, Mueller would presumably show up in January as the first witness before Rep. Jerry Nadler’s Judiciary Committee and spill all he knows.
That’s probably all the protection Mueller needs, and certainly all the protection he can legitimately be afforded.
The time to fire Mueller was June 2017, not December 2018, and not just for constitutional reasons. By now, the grand jury has heard enough testimony and evidence to act on their own and generate a “presentment” if Mueller suddenly got removed. They wouldn’t be under obligation to follow the Department of Justice’s policy about indicting sitting presidents, either. A Mueller firing would touch off so many unintended consequences that it’s difficult to imagine even a notoriously impulsive president like Trump doing so after having given written responses to Mueller — which are also likely in the grand jury’s hands.
This is nothing more than grandstanding on Flake’s part.
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