Flake Threatens to Block Judicial Nominees Unless Senate Votes on Bill to Protect Mueller Probe

Sen. Jeff Flake speaks to reporters on Capitol Hill after announcing he will not seek re-election on Oct. 24, 2017. (Win McNamee/Getty Images)

Sen. Jeff Flake (R-Ariz.) threatened on Nov. 15 to oppose 53 of President Donald Trump’s judicial nominations unless the Senate votes on a bill to protect the special counsel’s Russia investigation, after Senate Majority Leader Mitch McConnell objected to bringing the bill to the Senate floor.

Flake is part of the Senate Judiciary Committee, which holds confirmation hearings on nominees before the Senate votes on their nomination. While Flake’s vote is pivotal to secure a party-line majority for the Republicans on the committee, McConnell can bring a nomination to the Senate floor regardless of how the committee votes. Flake’s stand could also spell trouble in the Senate, where Republicans hold a slim 51–49 majority.

Twenty-one judges were awaiting committee confirmation and 32 judges were awaiting action by the Senate as of Nov. 15.

“I will not vote to advance any of the 21 judicial nominees pending in the Judiciary Committee, or vote to confirm the 32 judges awaiting confirmation on the Senate floor until (the bill) is brought to the full Senate,” Flake said in a floor speech after his effort to win consent for a vote failed on Nov. 14.

The Special Counsel Independence and Integrity Act, which Flake is advocating for, would codify certain protections for Mueller, including a requirement that the power to remove him be relegated exclusively to the attorney general or, in special circumstances, the most senior Senate-confirmed Justice Department official. The bill also requires the attorney general to provide a written notice specifying the reason for termination and enables the special counsel to contest the firing in court.

The bill includes a provision that allows an attorney general to terminate a special counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of policies of the Department.”

While the full scope of Mueller’s probe remains classified, he is tasked with investigating allegations of collusion between Trump campaign associates and Russia, as well as related matters. Mueller has yet to accuse anyone of colluding with Russia or produce any evidence of collusion.

FILE PHOTO: Special Counsel Robert Mueller departs after briefing the U.S. House Intelligence Committee on Capitol Hill in Washington on June 20, 2017. (Aaron P. Bernstein/Reuters)

Deputy Attorney General Rod Rosenstein appointed Mueller in May 2017 after Trump fired FBI Director James Comey. Then-Attorney General Jeff Sessions had recused himself from the Russia investigation before Mueller’s appointment.

As a result, Rosenstein has held the reins of the Mueller probe since May 2017 until early November this year. Sessions resigned at Trump’s request on Nov. 7. The president designated Matt Whitaker, the chief of staff for Sessions, as the acting attorney general. Trump’s designation handed control of the Mueller probe from Rosenstein to Whitaker.

The act, if approved by the House and Senate, would specifically prevent Whitaker from firing Mueller, as Whitaker was not approved by the Senate. The Senate Judiciary Committee passed the bill in a 14–7 vote in April. It is supported by the panel’s chairman, Chuck Grassley, as well as prominent Sen. Lindsey Graham. Both are Republicans.

“I would certainly vote for it,” Graham told reporters of the bill, which he supported when it passed the committee in April.

“I don’t see any movement to get rid of Mueller. But it probably would be good to have this legislation in place just for the future.”

McConnell has maintained for months that there is no danger to Mueller’s investigation.

“I don’t think any legislation is necessary,” he told reporters after winning his bid to remain Senate Republican leader.

“We know how the president feels about the ... investigation, but he’s never said he wants to shut it down.”

Whitaker has previously criticized the scope of Mueller’s probe, prompting Democrats to demand that he recuse himself from the Russia investigation. A number of Democrats, as well as the state of Maryland, argued that Trump’s appointment of Whitaker was illegal. The Justice Department concluded on Nov. 14 that Trump acted within his authority.

Trump has harshly criticized the Mueller probe, labeling it a “witch hunt.” On Nov. 15, the president said the inner workings of the probe are a “total mess.” Trump has previously opined, in a Twitter post, that Sessions should end the Mueller probe.

Flake and Democratic Sen. Chris Coons, also part of the effort to obtain a vote to protect Mueller, said they would continue to seek legislative action and could push to have a measure included in a government spending bill later this year.

Reuters contributed to this report.