Flake: Whitaker shouldn't oversee Mueller probe
© Anna Moneymaker
 
"The way the president has basically designated someone who is not Senate-confirmed to oversee the investigation, someone who's already expressed his reservations about the investigation, that's a problem," Flake told The Hill. 
 
Several of Flake's Democratic colleagues have called on Whitaker, who was previously Jeff SessionsJefferson (Jeff) Beauregard SessionsRosenstein still working at DOJ despite plans to leave in mid-March Juan Williams: Don't rule out impeaching Trump O'Rourke on impeachment: 2020 vote may be best way to 'resolve' Trump MORE's chief of staff, to recuse himself from Mueller's probe into the 2016 election and potential collusion between Russia and the Trump campaign. 
 
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Flake hedged Friday on if recusal calls were the right step, instead circling back to concerns that Trump had picked someone not confirmed by the Senate to become acting attorney general and get oversight of the Mueller probe. 
 
He countered that a president "being able to hand-pick" an individual, who has not been confirmed by the Senate, to oversee the investigation "doesn't seem right."  
 
"I don't know if recusal is the right thing, but to have somebody who is not Senate-confirmed in a position to oversee, you know, an investigation of the president's campaign, that just does not sit well here and I don't think it's consistent with practice and the Constitution really," Flake told The Hill. 
 
Flake is one of a handful of Republican senators who have joined with Democrats over concerns about the impact the firing of Sessions as attorney general could have on the Mueller investigation. Sessions had recused himself from the investigation and handed oversight over to Deputy Attorney General Rod RosensteinRod Jay RosensteinThe Hill's 12:30 Report: Trump steps up attacks on McCain Rosenstein still working at DOJ despite plans to leave in mid-March Graham says he'll probe Rosenstein's 25th Amendment remarks MORE.
 
The Justice Department confirmed this week — after Trump announced that Whitaker would succeed Sessions in an acting capacity — that he would also be given oversight of the special counsel investigation.
 
Flake and Sen. Christopher CoonsChristopher (Chris) Andrew CoonsSenate Dem calls on Trump to apologize for attacks on McCain Sixteen years later, let's finally heed the call of the 9/11 Commission  Senate Dems introduce bill demanding report on Khashoggi killing MORE (D-Del.) are expected to go to the Senate floor next week to ask for a vote on legislation that would give Mueller an "expedited review" if he is fired and would allow him to be reinstated if a court determined it wasn't for good cause. 
 
"The leader said there's no urgency because the special counsel is in no danger, people aren't being fired. That's changed, obviously," Flake said about the floor tactics. 
 
But the move is likely to be unsuccessful given opposition from GOP leadership on moving the bill. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump blasts McCain, bemoans not getting 'thank you' for funeral GOP senator: Trump's criticism of McCain 'deplorable' McConnell calls McCain a 'rare patriot' and 'American hero' after Trump criticism MORE (R-Ky.) told reporters in Kentucky on Friday that the legislation is "not necessary" because he did not believe Trump would try to fire Mueller or end the investigation. 
 
In addition to giving Mueller a path for potential recourse if he is fired, it would also codify that only a senior Senate-confirmed Justice Department official could fire him. 
 
Flake opened the door Friday, in an interview with The Hill and Politico, to trying to insert the bill into a must-pass, end-of-the-year government funding measure. It would be an uphill effort, but if all Democrats and Flake were able to convince another Republican senator to join their effort they would have leverage in the negotiations. 
 
"Yeah, I do. I do," he said, about trying to get it the spending bill. "The first step is to have this vote, and to have an affirmative vote and then obviously the next step is to put it in the spending bill."