Senate battle lines harden in FBI fight

Senate battle lines harden in FBI fight
© Greg Nash

Democratic senators are digging in ahead of a looming showdown over President Trump’s pick to lead the FBI. 

Trump could announce his nominee to head the embattled agency as soon as this week. The move is expected to spark what is shaping up to be a partisan showdown in the wake of James Comey’s firing — a decision that roiled much of Washington. 


Democrats are already pledging to use hardball tactics to get a special prosecutor to oversee the FBI’s investigation into Russia’s meddling in the presidential election. However, if Republicans unify around Trump’s selection, Democrats don’t have the votes to block the nominee

Regardless, a growing number of Democratic senators are signaling they are open to delaying the next FBI director until they get the Justice Department to appoint a special prosecutor.

“I think it’s very important that the first step be the appointment of a special prosecutor. That is the only way that the American public can have confidence in the justice system,” Sen. Chris Van Hollen (D-Md.) said on MSNBC on Monday. 

Senate Minority Leader Charles SchumerChuck Schumer84 mayors call for immigration to be included in reconciliation Senate infrastructure talks on shaky grounds Could Andrew Cuomo — despite scandals — be re-elected because of Trump? MORE (D-N.Y.) said over the weekend that he backs a special prosecutor, adding, “I think there are a lot of Democrats who feel that way.”

Democrats have demanded an independent counsel for months, but in the wake of Comey’s firing — only the second time an FBI director has been let go for cause — their demands are reaching a fever pitch. 

Sen. Patrick LeahyPatrick Joseph LeahyOvernight Defense: Senators reach billion deal on emergency Capitol security bill | House panel looks to help military sexual assault survivors | US increases airstrikes to help Afghan forces fight Taliban On The Money: Schumer, Warren call on Biden to extend student loan pause | IMF estimates 6 percent global growth this year Senators reach billion deal on emergency Capitol security bill MORE (D-Vt.), the former chairman of the Judiciary Committee, said Trump’s statements have put whomever he picks in a politically unenviable position.  

“The new FBI director has to say we’ll have an independent investigation,” he said. “The president has already said his standard for FBI director is he has to be loyal. … It puts the FBI director in an impossible position. That’s why you need a special prosecutor.” 

They argue that the FBI’s investigation could be “tainted” because of Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsWant to evaluate Donald Trump's judgment? Listen to Donald Trump Democrat stalls Biden's border nominee Garland strikes down Trump-era immigration court rule, empowering judges to pause cases MORE’s role in the decision to fire Comey and pick his replacement despite recusing himself from any involvement in the Russia investigation.

A partisan fight would be a break from the traditionally bipartisan support for an FBI director and is already threatening to eat up the Senate’s limited bandwidth and overshadow two of the GOP’s biggest priorities: healthcare and tax reform. 

It took Comey — who was approved 93-1 — nearly two months to be confirmed in 2013 after being nominated by former President Barack ObamaBarack Hussein ObamaObama to join NBA Africa as strategic partner Obama setting up big bash to celebrate his 60th A path to climate, economic and environmental justice is finally on the horizon MORE

Democrats are warning that they could pull out all of the procedural stops for Comey’s successor. 

They have multiple tools to slow walk Trump’s nominee, including delaying a vote in the Judiciary Committee and dragging out debate on the Senate floor. They’ve also signaled they are willing to jam up the Senate by blocking routine committee requests to push Republicans.

Seventy-eight percent of Americans support having a special prosecutor or independent commission oversee the investigation, which also includes potential ties between Trump campaign associates and Russia, according to a recent NBC News–Wall Street Journal poll. 

Yet Republicans have a 52-seat majority in the upper chamber and can lose up to two GOP senators, allowing Vice President Pence to break a tie. 

Democrats would also need to stop any red-state Democrats, such as Sen. Joe ManchinJoe ManchinOvernight Energy: Manchin grills Haaland over Biden oil and gas review | Biden admin reportedly aims for 40 percent of drivers using EVs by 2030 |  Lack of DOD action may have caused 'preventable' PFAS risks Manchin grills Haaland over Biden oil and gas moratorium Feehery: It's time for Senate Republicans to play hardball on infrastructure MORE (D-W.Va.), from supporting Trump’s nominee. Republicans will likely target the 10 Democrats up for reelection next year in states carried by Trump.

Democrats — under intense pressure from the left to oppose Trump’s entire agenda  — are also warning that a current lawmaker shouldn’t expect a glide path to confirmation, a veiled warning against picking John CornynJohn CornynBiden officials pledge to confront cybersecurity challenges head-on Eight Republicans join Democrats to confirm head of DOJ environmental division Federal officials abroad are unprotected — in a world of increasing volatility MORE (Texas), the No. 2 Senate Republican, who interviewed for the job over the weekend.   

Asked hypothetically if he could support any of Trump’s floated nominees if Democrats got a special prosecutor, Van Hollen stressed that the president’s pick needed to be nonpartisan. 

“We have to have someone at the helm of the FBI that is not connected to partisan politics in any way. In my view, that would mean it should not be somebody that is a current or former member of Congress,” he said. 

Democratic Sen. Sheldon WhitehouseSheldon WhitehouseKavanaugh conspiracy? Demands to reopen investigation ignore both facts and the law Christine Blasey Ford's lawyers blast FBI's Kavanaugh investigation as 'sham' New York gun rights case before Supreme Court with massive consequences  MORE (R.I.) made similar comments in the wake of Comey’s firing, a break with the Senate’s traditionally clubby atmosphere. 

Democrats could get some help on that demand. Sen. Lindsey GrahamLindsey Olin GrahamEight Republicans join Democrats to confirm head of DOJ environmental division GOP sees debt ceiling as its leverage against Biden DACA court ruling puts weight of immigration reform on Democrats MORE (R-S.C.) specifically called out Cornyn, telling NBC News that under normal circumstances, he would “be a superb choice to be FBI director. But these are not normal circumstances.”  

Cornyn was tight-lipped on Monday about his meeting, characterizing it as a “chat among friends” and telling reporters that he doesn’t currently have any followup interviews scheduled. Cornyn’s position as GOP whip is term-limited and will expire at the end of this Congress.

But Democrats’ push for a special prosecutor has failed to gain traction with Republicans. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellHouse to resume mask mandate after new CDC guidance Five takeaways from a bracing day of Jan. 6 testimony McCarthy, McConnell say they didn't watch Jan. 6 hearing MORE (R-Ky.) signaled in the wake of Comey’s firing that he remains strongly opposed to a special prosecutor.

Despite the political backlash, firing Comey has had little immediate impact on Trump’s already low approval ratings. Thirty-nine percent of Americans approve of Trump, according to the NBC News–Wall Street Journal poll that was conducted after the decision, only 1 percentage point lower than the April poll. 

Instead, Republicans want Trump to move quickly to fill the critical national security post and warn Democrats against overplaying their hand after largely helping confirm Deputy Attorney General Rod Rosenstein. 

“That would basically be inconsistent with that bipartisan vote of confidence for [Rosenstein],” Cornyn said when asked about Democratic threats to slow walk.

Rosenstein will have to make the decision about whether to pursue any prosecutions stemming out of the FBI’s investigation. 

Asked about Democrats’ threats, Don Stewart, a spokesman for McConnell, noted that Democrats had taken a tough line on most Trump nominees. 

“It’s not a surprise that they’d want to prevent the FBI from having a new leader, too, in the middle of terrorist threats here and around the globe,” he said. 

Sen. John ThuneJohn Randolph ThuneSenators reach billion deal on emergency Capitol security bill Senators scramble to save infrastructure deal GOP sees debt ceiling as its leverage against Biden MORE (R-S.D.), another member of leadership, argued the Democratic effort is a nonstarter.

“You’ve got to have the votes,” Thune said of the push to hold up the nominee. “I assume, when it’s time to vote, we’ll have the votes.”