[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.
____________________