Senate GOP discussing vote on Mueller protection bill
© Greg Nash

Senate Republicans are measuring support for legislation protecting special counsel Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE and could bring the bill up for a vote, Sen. John CornynJohn CornynThe Memo: Biden gambles that he can do it all Trump impeachment trial to begin week of Feb. 8 Limbaugh falsely says Biden didn't win legitimately while reacting to inauguration MORE (Texas), the No. 2 Senate Republican, said Tuesday.

Cornyn, in separate interviews with reporters and conservative radio host Hugh Hewitt, said Republicans could give the legislation a vote as they try to defuse a fight with Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeArizona GOP censures top state Republicans McCain, Flake and Ducey Budowsky: Democracy won, Trump lost, President Biden inaugurated Biden's inauguration marked by conflict of hope and fear MORE (R-Ariz.) that is holding up dozens of judicial nominees.

"We're whipping that to see where people are. I think the leader needs that information to decide how to manage all the competing demands on our time," Cornyn said when asked about discussions within the Republican caucus about the legislation.

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Flake has pledged to vote against all of President TrumpDonald TrumpMore than two-thirds of Americans approve of Biden's coronavirus response: poll Sarah Huckabee Sanders to run for governor Mexico's president tests positive for COVID-19 MORE's judicial nominees until he gets a vote on the legislation. With Republicans holding an 11-10 majority on the Senate Judiciary Committee, Flake's tactics effectively block them from moving nominees to the full Senate unless they can get help from Democrats.

Cornyn said Republicans were willing to hold a vote on the legislation "if that's what it's going to take" to move nominees. But, asked if it was a realistic possibility, he said leadership was still measuring support to get "an idea of what the outcome would be." 

 
Republicans have put a premium on confirming Trump's judicial picks, which they view as one of their best shots at having a long-term impact on the direction of the country.
 
In addition to Flake, several Republican senators, including Sens. Susan CollinsSusan Margaret CollinsBiden officials hold call with bipartisan group of senators on coronavirus relief plan The Hill's Morning Report - Biden's crisis agenda hits headwinds GOP senators say only a few Republicans will vote to convict Trump MORE (Maine), Thom TillisThomas (Thom) Roland TillisSenators introduce bill to award Officer Goodman the Congressional Gold Medal Schumer becomes new Senate majority leader Democrats see Georgia as model for success across South MORE (N.C.), Lindsey GrahamLindsey Olin GrahamSenators spar over validity of Trump impeachment trial Trump selects South Carolina lawyer for impeachment trial Democrats formally elect Harrison as new DNC chair MORE (S.C.) and Chuck GrassleyChuck GrassleyOn The Money: Treasury announces efforts to help people get stimulus payments | Senate panel unanimously advances Yellen nomination for Treasury | Judge sets ground rules for release of Trump taxes Senate panel unanimously advances Yellen nomination for Treasury Finance Committee vote on Yellen nomination scheduled for Friday MORE (Iowa), support giving the legislation a vote on the Senate floor.
 
Republicans have been privately mulling having a vote related to the legislation after Flake warned earlier this month that he would oppose all judicial nominees until the Mueller bill is brought up on the Senate floor.
 
In addition to effectively blocking nominees at the committee level, it also forces Republicans, who currently have a 51-49 majority, to lean on Vice President Pence to break a tie if no Democrats support a nominee.
 
The strain caused by Flake's tactics were on full display this week with Thomas Farr, a district nominee, currently short of the bare minimum of 50 votes needed to let Pence break a tie. GOP Sen. Tim ScottTimothy (Tim) Eugene ScottGOP senator calls Biden's COVID-19 relief plan a 'non-starter' GOP senator questions constitutionality of an impeachment trial after Trump leaves office Biden's minimum wage push faces uphill battle with GOP MORE (S.C.) hasn't yet said how he will vote.
 
Cornyn told Hewitt that Republicans were discussing a vote on the legislation and there was a “possibility” the Senate could give it a vote.
 
“We are checking with our members now to see exactly where, you know, how it would come out. It may be that he does get that opportunity,” Cornyn said, adding that he does not support it and believes the legislation has constitutional issues.
 
The Judiciary Committee 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.
 
Flake recently tried to schedule a vote on the legislation but was blocked by Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden attends first church service as president in DC, stops at local bagel shop Harry Reid 'not particularly optimistic' Biden will push to eliminate filibuster Senators spar over validity of Trump impeachment trial MORE (R-Ky.), who has argued the bill isn't necessary because the Mueller investigation isn't in danger. Proponents of the bill argue President Trump has made potential moves toward shutting down or stifling the investigation, most recently with his appointment of an attorney general who has criticized Mueller's probe into Russian election interference.
 
Flake and Sen. Chris CoonsChris Andrew CoonsDemocrats seek answers on impact of Russian cyberattack on Justice Department, Courts Senators introduce bill to award Officer Goodman the Congressional Gold Medal Senate chaos threatens to slow Biden's agenda MORE (D-Del.) are expected to go to the Senate floor again on Wednesday to try to schedule a vote. Coons told reporters on Tuesday that he is "confident" if they can bring the bill up on the floor they'll have the 60 votes needed for it to pass.
 
The bill would codify Justice Department regulations that say only a senior DOJ official can fire Mueller or another special counsel.

It 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.

Republican discussions about giving the legislation a vote come as Democrats call for it to be added to a must-pass spending bill if Republicans don't bring the bill up on its own.

GOP leaders have dismissed adding it to the funding bill, arguing it would spark a veto threat from Trump.

But Democrats maintain that Trump's decision to fire Jeff SessionsJefferson (Jeff) Beauregard SessionsHarris to resign from Senate seat on Monday Rosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' Sessions, top DOJ officials knew 'zero tolerance' would separate families, watchdog finds MORE as attorney general and replace him with Matthew Whitaker, Sessions's chief of staff, is the latest sign that the president wants to interfere in the Mueller investigation. 

“If the Majority Leader refuses to give it the vote it deserves, Democrats will push to include it on the must-pass spending bill that we must approve,” Senate Minority Leader Charles SchumerChuck SchumerCapitol insurrection fallout: A PATRIOT Act 2.0? Schumer calls for DOJ watchdog to probe alleged Trump effort to oust acting AG Student loan forgiveness would be windfall for dentists, doctors and lawyers MORE (D-N.Y.) said Tuesday.

McConnell appeared cool to giving the legislation a vote and said he would "probably" block Flake and Coons's second request to bring the bill to the floor.

"This is a solution in search of a problem. ...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," McConnell said.

Updated: 3:13 p.m.