Mueller's extension moves to Senate floor

Members of the Senate Judiciary Committee engaged in a heated exchange on Thursday as they debated and ultimately approved a bill extending Robert Mueller’s term as director of the FBI for another two years.

The bill now goes to the Senate floor for a vote by the full chamber. There has been no congressional opposition to Mueller taking an additional two years at the helm of the agency since President Obama asked him to stay last month. Mueller’s 10-year appointment is set to expire in August.   

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But on Thursday, Sen. Tom Coburn (R-Okla.) objected to the bill put forward by committee Chairman Sen. Patrick Leahy (D-Vt.). Coburn said it could violate the presidential appointment clause in the Constitution, which he said could limit or even jeopardize Mueller’s efficacy as the department’s head.

Last week, University of Virginia law professor John Harrison told members of the panel that Leahy’s bill “would be inconsistent with the Constitution because it would seek to exercise through legislation the power to appoint an officer of the United States, a power that may be exercised only by the president, a head of department, or a court of law.”

Coburn said Mueller could be forced to execute orders through a subordinate, in order to avoid having his authority challenged.

“The worry, expressed by Dr. Harrison, as well as others including Director Mueller as well when I asked him about that, is that somebody could challenge on the basis of a violation of the appointments clause any action we would take,” said Coburn.

Instead, Coburn proposed re-nominating Mueller for a two-year term, which would honor the president’s constitutional authority to appoint him. In return, Coburn said Republicans would agree to fast-track the bill through the committee.

But Democrats worry a Republican not on the committee could easily hold up such a nomination if they used Coburn’s approach.

Leahy pointed to the committee’s ranking member, Sen. Chuck Grassley (R-Iowa), who has put a hold on Obama’s nomination for deputy attorney general. Grassley has said he will continue to do so until he gets documents related to a controversial gun-tracking program that was run by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Under Leahy’s bill, though, there are concerns about how it will fare in a deeply divided House; only a simple majority is needed for it to pass in the Senate, making it a much easier task.

Majority Whip Dick Durbin (D-Ill.) stressed his support for Leahy’s bill, saying it does not violate the Constitution and that a strong enough atmosphere of trust does not exist in the upper chamber for him to believe a Republican would not try to hold up Mueller’s re-nomination.

“Were we in a different Senate with more cooperation, on — particularly — elements of national security, I would say then it’s harmless to go through your process, but as we know, one senator can stop the train indefinitely,” said Durbin.

“We just run the risk of this sitting on the calendar, like so many nominees have sat for month after weary month while someone bargains for something totally unrelated by holding up this nomination. That is what this Senate has unfortunately deteriorated to," Durbin said.