A bipartisan bill that would provide special counsel Robert Mueller legal recourse in the event of his firing passed the Senate Judiciary Committee on Thursday, but it failed to win the approval of one of Trump’s most outspoken critics in the Republican party.
Nebraska Senator Ben Sasse joined several of his GOP colleagues raising concerns about the Special Counsel Independence and Integrity Act, which would allow special counsels removed by the Justice Department to challenge the decision in court. The legislation, sponsored by Republicans Lindsey Graham and Thom Tillis alongside Democrats Chris Coons and Cory Booker, is intended to prevent what some say would cause a constitutional crisis. But Sasse argues that the measure would unintentionally spark a different one.
“Firing Robert Mueller while Russia is waging a shadow war against America would be disastrous for the nation, not to mention politically suicidal for the president. But we can’t solve a crisis of public trust by creating a constitutional crisis with a new fourth branch of government,” said Sasse in a statement provided to THE WEEKLY STANDARD. “And unfortunately, that’s the road this bill takes.”
Like Sasse, most Senate Republicans are in agreement that Trump should leave Mueller alone. Sen. Orrin Hatch, who voted against the bill in committee, said Thursday morning that firing Mueller would set off a firestorm, bring the administration to a halt, and “could even result in impeachment.” But Graham, Tillis, and a couple of additional Republicans on the judiciary panel went further.
The compromise bill would require the Attorney General or a deputy not recused from a case to provide written justification for the removal of a special counsel, and would permit the fired party to contest the action before a three-judge court. It passed the committee Thursday morning on a vote of 14-7, with four Republicans — Graham, Tillis, judiciary chairman Chuck Grassley, and Jeff Flake — joining all Democrats on the panel voting in favor. Before it passed, the committee approved an amendment introduced by Grassley creating increased congressional oversight, requiring the Justice Department to provide updates and report findings to Congress when investigations conclude.
Still, the bill doesn’t have a clear pathway to the president’s desk. Senate Majority Leader Mitch McConnell has said he will not bring it to the Senate floor for a vote, pronouncing that he doesn’t see a need for it. But even if the measure were to clear the Senate, the political risk of supporting it during primary season is anathema to House Republicans, many of whom think the investigation should have ended long ago.
Sasse and his colleagues who oppose the bill on constitutional grounds say it would tread upon the president’s Article II powers over the executive branch. Instead, Sasse said, “we should say loudly and clearly: if the President tries to deep-six the Special Counsel, the Senate will use all of its constitutional authority to ensure the investigation is sustained until completion.”
Utah senator Mike Lee, who shares Sasse’s concerns, as well as Hatch and Senate Majority Whip John Cornyn offered an alternative to the legislation during the hearing: a resolution (not carrying the force of law) that stressed the importance of the separation of powers and stated that Mueller “should be permitted to finish his work in a timely fashion.”
If that substitute amendment had passed, Sasse would have pushed for a vote on his own amendment to their version of the bill, which would strengthen the language concerning Mueller:
“If Robert Mueller is removed from the position of Special Counsel for the United States, or if the investigation of the efforts of the government of Russia to interfere in the 2016 presidential election is narrowed or terminated without the approval of the Special Counsel, Congress will use its lawful authorities under the Constitution of the United States — A) to ensure that the investigation is completed; and B) to hold the executive branch accountable.”
But for now, it looks like the Mueller protection bill — constitutional or not — is going nowhere fast.
“It’s unconstitutional, the House won’t pass it, and the president won’t sign it,” Cornyn told reporters after the committee hearing.
