[Congressional Record Volume 164, Number 187 (Wednesday, November 28, 2018)]
[Senate]
[Pages S7153-S7155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   UNANIMOUS CONSENT REQUEST--S. 2644

  Mr. COONS. Madam President, I am proud to join the Senator from 
Arizona and the Senator from New Jersey on the floor today in calling 
for action on a bipartisan bill--a bill that has been crafted to 
protect our institutions and safeguard the rule of law in this country 
not just right now but for future Congresses and administrations as 
well.
  Today, we will be asking our colleagues to give the Special Counsel 
Independence and Integrity Act the consideration here on the floor of 
the Senate that it deserves. This bill would do something simple but 
powerful: It would codify Department of Justice regulations that 
prevent the removal of a special counsel without good cause. That might 
seem like a small detail, but it is important. Independence is required 
to ensure that a special counsel can do his or her job and find the 
facts.
  Our bipartisan bill would put this restriction in statute and give 
the special counsel a clear legal remedy. If removed without cause, the 
special counsel would have a 10-day period to take the case to a three-
judge panel for expedited consideration. If the special counsel doesn't 
wish to contest his removal, it would proceed without interference.
  Both Republicans and Democrats recognize that removal of the current 
special counsel without a valid basis would be a significant, even a 
catastrophic event. It would be a constitutional crisis that would 
threaten the Presidency and the rule of law. We can work together to 
prevent a crisis.
  President Trump should be the first person to support this bill. He 
has raised concerns about oversight of the special counsel. He has 
accused the prosecutors of making partisan, politically motivated 
decisions. This act would ensure that regulations providing for 
supervision and oversight of the investigation are not just codified 
but strengthened. It would ensure that Congress gets a complete picture 
at the end of the investigation.
  My colleagues Senators Graham, Tillis, Booker, Grassley, and 
Feinstein were instrumental in crafting this balanced legislation, and 
it passed the Judiciary Committee by a strong bipartisan margin of 14 
to 7, 7 months ago. The time to take up and pass this bill in the 
Senate is now.
  Some have questioned the need for this legislation. They have said 
the President would never fire Special Counsel Mueller, and I hope and 
pray they are right. I don't think it would be in President Trump's 
interest to remove the special counsel and certainly not in the 
interest of our country.
  The President has repeatedly, publicly, and directly attacked the 
special counsel and his investigation. Just yesterday, he called his 
investigation a ``phony witch hunt'' that is ``doing tremendous damage 
to our criminal justice system.'' The President has already fired the 
FBI Director and forced the resignation of the Attorney General, citing 
grievances related to this investigation in both cases.
  We have an Acting Attorney General not confirmed by the Senate, with 
no nominee in sight to conduct oversight of this investigation, which 
is unprecedented and not acceptable.
  This bill addresses threats not just to this special counsel but 
future special counsels. I would ask my colleagues who are holding back 
this bill to consider whether they may wish it were the law in a 
Democratic administration as well. We should all appreciate the ways in 
which this protects the rule of law.
  Let me close by quoting what my colleague Chairman Grassley said when 
he expressed his view back in April that this should be considered by 
the full Senate during our Judiciary Committee markup on the bill:

       In some ways, today's vote will say a lot about how each of 
     us views our responsibilities as Senators. We took an oath to 
     protect and defend the Constitution of the United States, but 
     we're not judges or Presidents. We are stewards of the 
     legislative branch. The Founders anticipated that we would 
     wield the powers the Constitution affords us with great 
     ambition so that we could effectively check the powers of the 
     other branches. This bill certainly does that.

  I am confident that, if allowed to go to a vote, this bill would pass 
with more than 60 votes.
  History will judge us for how we work together to confront the 
challenges that face our Nation. The rest of the world is watching. It 
is important to take up and pass this bill.
  I now recognize my colleague, a cosponsor of this legislation, the 
Senator from New Jersey.
  Mr. BOOKER. Madam President, thank you very much.
  I want to thank my colleagues from Arizona and Delaware for being 
here today and for their leadership. I join them in asking the Senate 
to pass the Special Counsel Independence and Integrity Act by unanimous 
consent.
  The Special Counsel Independence and Integrity Act is a bipartisan 
bill. Again, I repeat, this is about the legislative branch asserting a 
commonsense check and balance on Presidential overreach. It is not 
divided along party lines; it is a bipartisan bill.

[[Page S7154]]

  This bill is about ideals that we all are aligned with--independence, 
integrity, and the ability of the special counsel and future special 
counsels to do their job effectively, without interference from a 
President. This is a proactive bill aimed at ensuring that now and in 
the future, we have appropriate checks and balances in place to prevent 
a constitutional crisis.
  The bill is becoming more urgent. We know that there was an attack on 
our democracy. We know that there were and are foreign agents who 
attempted and are attempting to manipulate and undermine our democratic 
institutions. We need to understand what happened and how to prevent it 
from happening again and to hold those people accountable for their 
actions.
  The preservation of the special counsel investigation is indeed a 
matter of national security, but we know that the special counsel is in 
danger. We know he is in danger because even just yesterday, the 
President was again maligning and mischaracterizing the special counsel 
investigation. We know there is danger because just a few weeks ago, 
the President fired Attorney General Sessions and named Matthew 
Whitaker as the Acting Attorney General to oversee the Mueller 
investigation. We know that Acting Attorney General Whitaker has a 
history of criticizing and debasing the very investigation he is now 
responsible for overseeing. In 2017, he wrote an op-ed calling this 
investigation into our national security a ``witch hunt.''
  This investigation must be allowed to continue without interference. 
This investigation must continue for our national security. We are all 
stewards of our democracy. It has been sustained by this ideal: that no 
one, not even the President of the United States, is above the law. We 
must act quickly to protect and secure this fundamental democratic 
ideal. This is a sobered, measured, bipartisan bill that will achieve 
those ends.
  I now yield to my colleague from Arizona.
  Mr. FLAKE. Madam President, I thank my colleague from New Jersey and 
my colleague from Delaware for working together on this issue.
  I rise today once again to speak in defense of Special Counsel Robert 
Mueller and to speak of the importance of the investigation he is 
leading and the attacks on our electoral system during the lead-up to 
the 2016 election. One wouldn't expect that such an investigation would 
be controversial, but somehow it warranted a tweet from the President 
earlier this week--one of several tweets--calling Special Counsel 
Mueller a ``conflicted prosecutor gone rogue'' and claiming that the 
``$30 million witch hunt'' is doing nothing but ruining lives. To be 
clear, this is the same investigation that brought indictments for more 
than a dozen Russian nationalists for attempting to influence the 2016 
election. Why shouldn't we be up in arms about that? Why does that 
warrant a tweet from the President--many tweets--trying to go after the 
special counsel?
  The findings of this investigation are too important to our national 
security and the well-being of our democratic institutions to be halted 
or watered down. Mr. Mueller must be able to preserve the work he has 
done by completing this very thorough investigation, and his findings 
must be made public. This legislation has been proposed to ensure this 
outcome.
  S. 2644, the Special Counsel Independence and Integrity Act, serves 
one purpose: to protect the integrity of the special counsel's 
investigation and to prevent the executive branch from inappropriately 
interfering in an independent investigation in the future.
  This legislation passed out of the Judiciary Committee in a 
bipartisan manner nearly 8 months ago. It has been awaiting action on 
the Senate floor ever since. It passed on May 26. Since that time, the 
Judiciary Committee has been busy. We have been busy here on the Senate 
floor. We have processed more than 50 judges and passed them here on 
the Senate floor. That is a good thing, but the priority now needs to 
be to protect the special counsel.
  Some of my colleagues have said that this legislation is not 
necessary because there hasn't been any indication that Mr. Mueller 
will be removed from office. But with the President tweeting on a 
regular basis, a daily basis, that the special counsel is conflicted, 
that he is leading the so-called 12 angry Democrats, and demeaning and 
ridiculing him in every way, I believe to be so sanguine about the 
chances of him being fired is folly for us. We have already seen the 
forced resignation of the Attorney General the day after the election. 
It is clear, therefore, that something has to be done to protect Mr. 
Mueller's investigation.

  Let me just say it wasn't just that the Attorney General was fired; 
it is that the investigation--or oversight for the investigation--was 
taken from the Deputy Attorney General, where it properly belonged and 
where it was before. It was taken from him and given to somebody who is 
in an acting capacity--somebody who has not been confirmed by the 
Senate. Should we in the Senate be OK with that? I would argue no, we 
can't be.
  That is why a few weeks ago my colleague from New Jersey and my 
colleague from Delaware came to the Senate floor to ask unanimous 
consent to bring this bill to the floor. After our efforts were blocked 
by an objection, we promised to come to the floor again and again, and 
that is why we are here today. We will continue to do so until this 
vital investigation is completed.
  So I ask unanimous consent that the Senate proceed to the immediate 
consideration of Calendar No. 393, S. 2644; I further ask that the 
committee-reported substitute amendment be agreed to, the bill, as 
amended, be considered read a third time and passed, and that the 
motions to reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Utah.
  Mr. LEE. Madam President, reserving the right to object, I ask 
unanimous consent for 2 minutes to articulate the basis of my concern.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEE. Madam President, for reasons articulated by Justice Scalia 
in his classic opinion in Morrison v. Olson, the prosecutorial 
authority of the United States belongs in the Department of Justice.
  The Department of Justice answers to the President of the United 
States. Its principal officers consist of people appointed by the 
President, serving at the pleasure of the President, after being 
confirmed by the U.S. Senate.
  This is a fundamental component of our liberty. The separation of 
powers protect us. That doesn't mean we are always going to agree with 
what every President in every administration does. But as Justice 
Scalia explains, we cannot convert an office like this one--an office 
like the previously existing Office of Independent Counsel--without 
creating a de facto fourth branch of government, fundamentally 
undermining the principle of separation of powers that is so core to 
our liberty.
  On that basis, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Delaware.
  Mr. COONS. Will my colleague from Utah consider a question?
  Mr. LEE. I am very late for another meeting, but, yes, I will, 
because I like my friend from Delaware.
  Mr. COONS. Was Justice Scalia's dissent in Morrison v. Olson a 
majority opinion?
  Mr. LEE. No, it was not. At the time it was written, it was somewhat 
novel; it was somewhat new. Since then, it has become a widely adopted 
view--a view adopted by people across the political spectrum, 
regardless of their political ideology.
  I challenge every one of you to read it. It is right.
  Mr. COONS. Madam President, will the Senator yield for another 
question?
  Mr. LEE. I am very late.
  Mr. COONS. Let me just conclude by saying that the DC Circuit 
reconsidered this issue just this year and in their decision said that 
Morrison remains valid and binding precedent.
  I know we have other urgent business to move to, but I will simply 
say that I am grateful for the work of my colleague from Arizona. 
Despite the objection of my colleague from Utah, I am convinced this is 
an important bill that we should continue to bring forward on the floor 
of the Senate.
  Thank you.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the Kelley nomination?

[[Page S7155]]

  

  Mr. WICKER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  The result was announced--yeas 62, nays 38, as follows:

                      [Rollcall Vote No. 248 Ex.]

                                YEAS--62

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Casey
     Cassidy
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heitkamp
     Heller
     Hoeven
     Hyde-Smith
     Inhofe
     Isakson
     Johnson
     Jones
     Kennedy
     King
     Kyl
     Lankford
     Lee
     Manchin
     McCaskill
     McConnell
     Moran
     Murkowski
     Nelson
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Schatz
     Scott
     Shaheen
     Shelby
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--38

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Kaine
     Klobuchar
     Leahy
     Markey
     Menendez
     Merkley
     Murphy
     Murray
     Peters
     Reed
     Sanders
     Schumer
     Smith
     Stabenow
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The nomination was confirmed.
  The PRESIDING OFFICER (Mr. Tillis). Under the previous order, the 
motion to reconsider is considered made and laid upon the table and the 
President will be immediately notified of the Senate's action.

                          ____________________