Special counsel protection bill still faces major roadblocks

Senate Judiciary Chairman Chuck Grassley said Thursday that the new bill that to protect special counsel Robert Muell...

Posted: Apr 12, 2018 5:47 PM
Updated: Apr 12, 2018 5:47 PM

Senate Judiciary Chairman Chuck Grassley said Thursday that the new bill that to protect special counsel Robert Mueller is an improvement, but he still has constitutional concerns about the measure to restrict the ability of the President to fire the special counsel.

And a fight is already brewing ahead of an expected markup later this month about an amendment from Grassley that would add requirements for the special counsel to report to Congress about changes to the scope of the investigation and decisions to prosecute or not prosecute.

Democrats say that the amendment could undermine the Mueller investigation, and the committee's top Democrat, Sen. Dianne Feinstein of California, asked for the bill to be delayed because she hadn't been able to view the amendment yet. As a result, the committee markup is expected in two weeks.

"I'm worried about an amendment we haven't been able to review that could undermine the investigation," Feinstein said in a statement.

Legislation in Congress to protect Mueller has taken on a new sense of urgency among Democrats this week as the President has targeted Mueller on Twitter and is considering firing Deputy Attorney General Rod Rosenstein, who is in charge of the special counsel.

Grassley argued Thursday that the amendment would strengthen the special counsel bill, and not undermine Mueller, by adding reporting requirements to Congress.

"I'm at a loss to see how a call for the administration to be more transparent about decisions involving the special counsel - including any decision to fire the special counsel or curtail his investigation - would undermine the Mueller investigation," Grassley said in a statement.

A Republican aide said that the amendment, which is not yet finalized, is expected to add reporting requirements to Congress, including notification from the special counsel about changes to the probe's scope, decisions to prosecute or not prosecute and the special counsel's firing.

It's expected to include language requiring 30-day reporting requirements to Congress that are mirrored after inspector general regulations, the aide said.

The legislation introduced earlier this week was a compromise measure merging two separate bills introduced last summer by Republican Sens. Lindsey Graham of South Carolina and Thom Tillis of North Carolina, and Democratic Sens. Cory Booker of New Jersey Democrat and Chris Coons of Delaware.

If the special counsel is fired, the measure would provide a 10-day window for the special counsel to seek an expedited judicial review to determine whether the firing was for good cause.

Even if the committee successfully passes the bill in committee, it still faces major obstacles, as Senate Republican leaders have argued the measure is not necessary because President Donald Trump isn't going to fire Mueller - and that he wouldn't sign the bill anyway.

"If it attempts to restrict the President's authority, I don't think it's constitutional," said Sen. John Cornyn of Texas, the No. 2 Senate Republican. "I think uniformly people believe, as I do, it would be a big mistake, and the investigation ought to be able to run its course."

Cornyn said that the legislation - and Mueller's investigation itself - did not come up at the dinner Trump had with congressional Republican leaders Wednesday evening.

In the House, the Judiciary Committee's top Democrat, New York Rep. Jerry Nadler, introduced a companion bill on Thursday that was based on legislation proposed last year by Rep. Sheila Jackson Lee of Texas.

House Republican leaders have also shown no appetite for such legislation, and Nadler's bill did not have any Republican co-sponsors. Nadler acknowledged the lack of Republican support but predicted he would pick up "at least one" GOP co-sponsor.

At Thursday's Senate Judiciary Committee meeting, senators danced around the potential clash over the bill during its markup.

While he raised constitutional concerns, Grassley said that the bill was an improvement from the initial measures introduced last year, noting specifically that it included a "severability" clause that would keep some of the legislation intact if the courts ruled part of it was unconstitutional.

Grassley predicted that the courts would ultimately have to determine whether the legislation was constitutional.

Democratic Sen. Dick Durbin of Illinois sought to introduce a "sense of the committee" resolution on Thursday that said Trump should not fire Mueller or Rosenstein during the course of the special counsel's investigation. But Grassley objected, saying that he wasn't informed about the resolution in advance, and the matter was dropped.

Tillis, one of the bill's cosponsors, said he would have opposed Durbin's resolution. He argued that the need for the special counsel bill wasn't tied to Trump and Mueller, and that he's not acting out of a sense of urgency over claims that Mueller's firing is imminent.

"Some people want to portray what we're doing now as some sort of quick action to prevent the removal of the special counsel because his termination is imminent. I don't believe that," Tillis said. "I believe in my heart of hearts the President doesn't intend to remove the special counsel. But what I do believe is this is a policy that will have enduring value that will mean any future president will be subject to the same sort of standard."

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