McConnell, Flake clash over protecting Mueller probe

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellErnst endorses bipartisan Grassley-Wyden bill to lower drug prices Senate braces for fight over impeachment whistleblower testimony Trump declares war on hardworking Americans with new budget request MORE (R-Ky.) and Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeMcSally launches 2020 campaign Sinema will vote to convict Trump Senate drama surrounding Trump trial starts to fizzle MORE (R-Ariz.) clashed during a closed-door lunch meeting Thursday, with McConnell challenging Flake’s effort to force a vote on legislation protecting special counsel Robert MuellerRobert (Bob) Swan MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE.  

McConnell pressured Flake to back off his strategy of blocking judicial nominees in the Senate Judiciary Committee in an effort to force a vote on his bill that would protect the special counsel from being fired without good cause. 

Flake, however, dug in his heels and made clear that he’s not going to budge. 

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McConnell was equally implacable, according to senators who witnessed the argument. 

“It’s a standoff,” said a Republican senator who attended the lunch. 

Their fight reflects a larger divide within the GOP conference. 

Some GOP senators argue the chamber should pass legislation to protect Mueller. 

Flake and Sens. Lindsey GrahamLindsey Olin GrahamGraham warned Pentagon chief about consequences of Africa policy: report Senate braces for fight over impeachment whistleblower testimony US defense chief says Taliban deal 'looks very promising' but not without risk MORE (R-S.C.) and Thom TillisThomas (Thom) Roland TillisErnst endorses bipartisan Grassley-Wyden bill to lower drug prices Trump pick for Fed seat takes bipartisan fire Three Senate primaries to watch on Super Tuesday MORE (R-N.C.) have co-sponsored legislation that would codify Justice Department rules requiring that a special counsel only be fired for good cause.

Critics, however, contend that there’s no danger of President TrumpDonald John TrumpCensus Bureau spends millions on ad campaign to mitigate fears on excluded citizenship question Bloomberg campaign: Primary is two-way race with Sanders Democratic senator meets with Iranian foreign minister MORE firing Mueller and predict the bill would die in the GOP-controlled House. 

The fate of the Mueller investigation became a more pressing concern to some Republican senators after Trump forced Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsThe Hill's Morning Report - Sanders on the rise as Nevada debate looms NSA whistleblower petitions Trump for clemency Alabama Senate contender hits Sessions in new ad: 'Hillary still ain't in jail' MORE to resign immediately after the midterm elections. 

He then named Matthew Whitaker, Sessions's chief of staff and a critic of Mueller's Russia probe, to serve as acting attorney general. 

McConnell argued at the lunch meeting that the legislation would chew up precious floor time during the lame-duck session and leave less time for must-pass bills such as the unfinished spending bills and the farm bill, according to sources familiar with the conversation.

Flake, who is retiring at the end of this Congress, didn’t buy that argument. 

He replied that Democrats wouldn’t object to speedy consideration of the special counsel protection bill because their entire caucus supports it, sources said. 

Flake argued that the bill could be dealt with in a day as long as other members of the GOP conference didn’t object to it and force McConnell to waste time getting through a filibuster.

Some Republican senators floated the compromise of crafting some kind of nonbinding resolution that would express support for protecting Mueller and future special counsels from unjustified dismissal. 

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But Flake rejected that option, too. He argued that the Judiciary Committee passed the Special Counsel Independence and Integrity Act in April by a 14-7 vote and the Senate should act on it, instead of some nonbinding measure that hasn’t yet received committee review. 

Flake, a member of the Judiciary Committee, tried to force McConnell’s hand Thursday by saying he would continue to object to moving Trump’s judicial nominees to the floor unless the special counsel protection bill gets a vote. 

McConnell is telling colleagues he’s standing firm. 

Asked if there’s any chance that McConnell will let Flake have a vote, Sen. John ThuneJohn Randolph ThuneMcConnell tees up votes on two abortion bills Senate votes to rein in Trump's power to attack Iran As many as eight GOP senators expected to vote to curb Trump's power to attack Iran MORE (S.D.), who was elected Wednesday as the next Senate Republican whip, said, “I don’t think he has any intention at this point of going down that path.”

McConnell has stated repeatedly that there is no danger of Trump firing Mueller and says he supports the special counsel completing his investigation. 

Flake said after the lunch that while some colleagues have tried to pressure him, others have voiced support.

Asked Thursday if fellow GOP senators are unhappy with his hardball approach to getting a vote, Flake said, “That’s a safe assumption.”

Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyErnst endorses bipartisan Grassley-Wyden bill to lower drug prices Overnight Health Care: Nevada union won't endorse before caucuses after 'Medicare for All' scrap | McConnell tees up votes on two abortion bills | CDC confirms 15th US coronavirus case Mnuchin defends Treasury regulations on GOP tax law MORE (R-Iowa) held more than 15 judicial nominees at a committee business meeting Thursday after Flake declared he would block them. 

Speaking to reporters afterward, Grassley said he didn’t think he could move any more nominees without Flake’s support unless he can convince Democrats on the panel to vote with him. 

Republicans control 11 seats on the committee while the Democrats have 10. That means if Flake votes "no" and Democrats stay unified, Republicans can’t report nominees with favorable nominations.

McConnell could try to bring those nominees to the floor without committee approval, but it would break precedent and undermine the panel’s role. 

“That’s never been done as far as I know,” Grassley told reporters Thursday morning. “I don’t think that would be done.”

McConnell has made confirming Trump’s judicial nominees his top priority in 2018 and regularly touts how many judges the Senate has confirmed to federal appellate and district courts. 

Grassley suggested on Thursday that many of the nominees pending in committee might have to wait until next year and that the Senate should focus on the 35 nominees already passed out of committee. 

Sen. Cory GardnerCory Scott GardnerErnst endorses bipartisan Grassley-Wyden bill to lower drug prices Senate Democrats pressure Trump to drop ObamaCare lawsuit Impeachment fallout threatens to upend battle for Senate MORE (R-Colo.) predicted that McConnell would find some way through the impasse because he places so much importance on nominees. 

“Mitch McConnell is a judicial nominations machine … so anything that’s going to slow that down he’s obviously going to [fix],” he said. 

Flake says there is growing support within his conference for passing a bill to protect Mueller. 

“Ultimately the pressure will build for us to bring this bill to the floor or to put it as part of the spending bill so it’s part of must-pass legislation,” he said.

Grassley, who voted for the special counsel protection bill on the committee level, said Thursday that it deserves a vote. 

“It’s legitimate that the bill be brought up,” he said. “It would satisfy me if it became law because I voted for it.”

Other Republican senators who have expressed support for legislation protecting Mueller and future special counsels from unjustified termination include Graham, Tillis, Susan CollinsSusan Margaret CollinsErnst endorses bipartisan Grassley-Wyden bill to lower drug prices Senate braces for fight over impeachment whistleblower testimony Toward 'Super Tuesday' — momentum, money and delegates MORE (Maine), Lisa MurkowskiLisa Ann MurkowskiDemocrats worried about Trump's growing strength The Hill's Morning Report — AG Barr, GOP senators try to rein Trump in Overnight Defense: Senate votes to rein in Trump war powers on Iran | Pentagon shifting .8B to border wall | US, Taliban negotiate seven-day 'reduction in violence' MORE (Alaska), Jerry MoranGerald (Jerry) MoranThe Hill's Morning Report — AG Barr, GOP senators try to rein Trump in Overnight Defense: Senate votes to rein in Trump war powers on Iran | Pentagon shifting .8B to border wall | US, Taliban negotiate seven-day 'reduction in violence' The 8 Republicans who voted to curb Trump's Iran war powers MORE (Kan.) and Bob CorkerRobert (Bob) Phillips CorkerMcConnell, Romney vie for influence over Trump's trial RNC says ex-Trump ambassador nominee's efforts 'to link future contributions to an official action' were 'inappropriate' Lindsey Graham basks in the impeachment spotlight MORE (Tenn.). 

“There are some who are not on the committee who will vote for this,” he said of Senate GOP colleagues. “It will pass on the floor.”

The legislation would codify existing Justice Department regulations requiring that the special counsel can only be fired for good cause by a Senate-confirmed department official.

It would also create a 10-day window for a judge to decide whether any termination of a special counsel is for good cause and stop the firing if it fails to meet the cause requirement.