It’s amazing how far a little bit of leverage will go in a bare Senate majority. Jeff Flake, who retired and left the seat open for Democrat Kyrsten Sinema, declared earlier this month that he would vote to deny confirmation for any more judges until the Senate voted on legislation to protect Robert Mueller’s special counsel probe. Senate Majority whip John Cornyn told Hugh Hewitt they may give him the floor vote just to get past the obstruction — and because they don’t have much choice:
HH: Go for, it is going to be an interesting, they have a wild ride ahead of them. Senator, let’s focus on some more mundane things. First, the lame duck session of the expiring Congress, is there going to be a government shutdown, and are we going to get any nominees through with Jeff Flake’s concerns on the table?
JC: Well, we’ve got some judges on the calendar now that we can pass even if we don’t have Senator Flake’s support. But we can’t get them out of the Judiciary Committee, so we’re going to be working with Senator Flake to see what he needs in order to lift his hold. There is a possibility we will have a vote on the Mueller, so-called Mueller protection bill, but I think there really is some serious Constitutional issues on that, and I certainly don’t support it. I don’t think the president’s going to fire Bob Mueller, but we have a farm bill to take care of. There’s a lot of interest in a criminal justice reform bill. We have a Yemen war powers resolution that’s privileged and needs to be voted on this week, probably. So we’ve got a lot to do and not much time to do it in.
Hugh later returned to the same subject, and Cornyn sounded more specific about Flake getting “his shot” at the bill:
HH: So Senator Flake wants the vote on the Mueller law. I think it’s an unconstitutional law, but why not give it to him?
JC: Well, 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. If we can have a relatively expedited up or down vote, and my preference is that it fail, but at least he will have had his shot. And my hope is that he then will agree to let us confirm the judges that are on the calendar, because I agree it’s, they’ve been through a long, arduous process, many of them putting their practice and their families on hold while they’re waiting for confirmation. So it’s unfair to them to simply tell them to start over again next year, which is what would have to happen. So I’m hopeful we can work it out, and we’re working hard at it.
The constitutional issue relates to the president’s authority to hire and fire executive-branch personnel. Flake and others want to require that valid cause exist before a president can fire a special counsel, but that’s usually a requirement for civil-service-eligible jobs to keep politics out of terminations for non-appointee positions. Those serving in political-appointee positions do so at the pleasure of the president in an at-will relationship, not a civil-service relationship. Denying the president his authority to fire an appointee would arguably cut into his Article II authority as chief executive, especially since the special counsel exists entirely within that authority rather than in a quasi-legislative regulatory agency.
None of this matters much besides the academic value of the debate. Flake’s efforts might pass the Senate and might even pass the House, but Trump would eventually veto the bill anyway. There won’t be enough votes in either chamber to override the veto, which will leave everything in place as it is … but at least Cornyn and the GOP will have confirmed more judges in the meantime.
It’s almost certainly a moot point anyway as it’s far too late to fire Mueller now. Trump just sent over a written response to Mueller’s questions, which he would hardly have bothered to do if he planned on firing Mueller. Firing would have little impact on the progress of the case, and thanks to the results of the midterms, would do little else but set the stage for an impeachment. If nothing else, the Democrat-controlled House Judiciary Committee could immediately appoint Mueller as its own staff counsel to pursue the rest of the case. He’s had subpoena power for almost 18 months, and has no doubt used it to the best of his ability. The only thing left is to write a report, which he could do as either special counsel or House Judiciary investigator.
So yes, the best course here is just to give Flake what he wants on his way out the door. It’s the path of least resistance … in all senses of the term.