Democrats are already preparing a host of investigations into the resignation of Attorney General Jeff Sessions once they retake the House in January, but the country's best hope to protect special counsel Robert Mueller still lies in the hands of a Republican.
Sessions resigned Wednesday at the request of President Trump, who immediately appointed Sessions' deputy, Matthew Whitaker, as acting attorney general — an unconventional route even if Whitaker weren't an open critic of the Russia probe who once appeared on television to outline a way to derail Mueller’s investigation.
But amid the announcement — and rumors that Mueller was getting ready to indict the president’s son — Republican Sen. Jeff Flake announced he will push a bill to protect Mueller’s investigation into Russian interference in the 2016 election.
Separately, top Democrats have already sent several letters to the Trump administration to implore officials to preserve “all materials related to any investigations by the Special Counsel’s office,” as well to Sessions’ departure, in preparation for their retaking of the House on Jan. 3.
Flake's bill is technically a bipartisan effort — the legislation is co-sponsored by Sen. Chris Coons, a Delaware Democrat — but so far, Flakes' GOP colleagues have stayed largely mum on the issue.
Experts say Flake’s bill is legislators’ best, and maybe only, hope to preserve the integrity of the Mueller investigation — even though the nation has faced this exact issue before, said Erwin Chemerinsky a constitutional legal scholar and professor at Berkeley Law. In fact, the Ethics in Government Act, a bill enacted in the wake of the Watergate scandal that addresses this very issue, only came about after President Richard Nixon cycled through three attorney generals before he found one who would fire the special counsel investigating him.
“Congress by statute can create protection for the independent counsel,” said Chemerinsky. “There used to be such a law. That law expired and wasn’t renewed.”
Chemerinsky said the only way he can think of for Congress to protect Mueller now would be by introducing similar legislation.
And lawmakers are indeed working on it. Flake’s bill — the Special Counsel Independence and Integrity Act — has already been voted out of committee, and Flake is urging Senate Majority Leader Mitch McConnell to bring a vote to the Senate floor.
But how good of a chance does Flake’s bill have of making it through Congress and to the president’s desk? VICE News has contacted the press teams for every sitting Republican senator to ask if they will support the bill.
Here’s what they said.
These senators support Flake’s legislation
Lamar Alexander, Tennessee
Though he hasn’t directly expressed support for Flake’s bill, Alexander released a statement saying that Mueller must be allowed to complete his investigation. He did not respond to VICE News’ request for comment.
Susan Collins, Maine
Collins released a statement saying she supports Flake’s legislation. “For these reasons, I believe that we should bring to the Senate floor legislation that would put restrictions on the ability of President Donald Trump to fire the Special Counsel. This bill would codify the restriction that the Special Counsel can only be fired for good cause and in writing,” Collins said.
Thom Tillis, North Carolina
Tillis said he doesn't think Trump will go after Mueller but wants to pass the legislation anyway. "I don't think it's necessary to protect Mueller, but I do think it's a bill that ultimately needs to get passed, because it will apply to all future presidents," Tillis said on Fox News.
These senators oppose Flake’s legislation
Bob Corker, Tennessee
Corker has not publicly commented, but voted against advancing the bill out of committee.
Mike Crapo, Idaho
Crapo has not publicly commented, but he voted against advancing the bill out of committee.
Ted Cruz, Texas
Ted Cruz, who voted against advancing Flake’s bill out of committee, reiterated in a CBS interview that he thought the legislation was unconstitutional. "We had a bill come through the Judiciary Committee that tried to make it impossible for a special counsel to be removed. I believe that legislation was unconstitutional," he said.
Joni Ernst, Iowa
Though she did not respond to VICE News’ numerous requests for comment, Ernst released a statement after Sessions’ firing to herald Matt Whitaker, indicating that she is not concerned about the integrity of Mueller’s probe.
“Fellow Iowan Matt Whitaker is a man of integrity and values,” Ernst said. “As Acting Attorney General, Matt Whitaker is a steady hand that will provide good leadership and judgment, and will ensure that the United States Department of Justice upholds the highest standards of the rule of law.”
Cory Gardner, Colorado
Gardner said on NBC that Mueller must be protected, but he hesitated to endorse Flake’s legislation. When pressed by host Chuck Todd on whether he would support Flake’s bill, Gardner said: “Well, I think it’s going to continue. If it continues … why protect something that’s actually continuing?”
Lindsey Graham, South Carolina
In 2017, Graham famously said there'd be “holy hell” to pay if Trump fired Sessions, and voted to advance the bill out of committee last April. But “Things have changed,” Graham said Thursday night on Fox News. “It’s clear to me it’s not working, was not working, between Attorney General Sessions and President Trump,” Graham said. “So for months now, I’ve been saying that after the election, if the president wants to change attorney generals, he has every right to do so.”
Orrin Hatch, Utah
Hatch has not publicly commented, but he voted against advancing the bill out of committee.
Mike Lee, Utah
A spokesman for Sen. Lee told VICE News that he opposes the bill because it “unconstitutionally limited the president’s control over the executive branch.” He said he still supports Mueller being allowed to finish the investigation.
Majority Leader Mitch McConnell, Kentucky
McConnell, who would be responsible for putting the bill on the Senate agenda for a vote, has said that it “isn’t necessary.”
“The president’s said repeatedly he’s not going to dismiss the Mueller investigation,” McConnell said, ignoring the fact that the president has repeatedly claimed to have the power to fire Mueller if he wants to. “He’s said repeatedly it’s going to be allowed to finish. That also happens to be my view.”
These senators haven’t endorsed Flake’s legislation, but they have thoughts
Chuck Grassley, Iowa
A spokesman for Grassley pointed to an old statement the senator gave about the legislation, saying Grassley wants an amendment to Flake’s bill because he is concerned it overreaches. He did vote to advance the bill out of committee.
“It’s possible the bill goes too far, and I understand the position of those with strong constitutional objections who will vote against it. But, at the very least, if my amendment is adopted, it will require the executive branch to give more information to Congress,” Grassley said. “And that will enable Congress to do its job more effectively, and to safeguard the interests of the American people.
John Kennedy, Louisiana
Sen. Kennedy said on CNN that he did not believe the president would go after Mueller.
"I think it would provoke some sort of reaction by Congress, I think he knows that,” Kennedy said. Kennedy has previously been critical of the Mueller probe, and he voted against advancing the bill out of committee.
Jerry Moran, Kansas
In a statement, Moran indicated he wants to see the investigation carry on but declined to commit to the legislation. “I expect that during this transition period, the Department will make certain federal law enforcement agencies continue to protect our country, carry out the rule of law and allow the Special Counsel investigation to continue unimpeded,” he said.
Ben Sasse, Nebraska
Sasse voted against advancing Flake’s bill out of committee, but he has expressed a desire to protect Mueller’s probe and called it a “prerequisite” of any Senate confirmation for a Trump attorney general nominee.
These senators did not respond to a request for comment and have not spoken out publicly
John Barrasso, Wyoming
Roy Blunt, Missouri
John Boozman, Arkansas
Richard Burr, North Carolina
Shelley Moore Capito, West Virginia
Bill Cassidy, Louisiana
John Cornyn, Texas
Tom Cotton, Arkansas
Steve Daines, Montana
Mike Enzi, Wyoming
Deb Fischer, Nebraska
Dean Heller, Nevada
John Hoeven, North Dakota
Cindy Hyde-Smith, Mississippi
Jim Inhofe, Oklahoma
Johnny Isakson, Georgia
Ron Johnson, Wisconsin
Jon Kyl, Arizona
James Lankford, Oklahoma
Lisa Murkowski, Alaska
Rand Paul, Kentucky
David Perdue, Georgia
Rob Portman, Ohio
James Risch, Idaho
Pat Roberts, Kansas
Mike Rounds, South Dakota
Marco Rubio, Florida
Tim Scott, South Carolina
Richard Shelby, Alabama
Dan Sullivan, Alaska
John Thune, South Dakota
Pat Toomey, Pennsylvania
Roger Wicker, Mississippi
Todd Young, Indiana
Cover image: UNITED STATES - JUNE 19: FBI Director Robert Mueller testifies before a Senate Judiciary Committee hearing in Dirksen Building on oversight of the FBI. (Photo By Tom Williams/CQ Roll Call)