by Burgess Everett · May 10, 2017
Senate Democrats wield little leverage to block James Comey’s replacement from being confirmed, considering any nominee can be approved by the chamber on a simple majority vote. | AP Photo
The Senate is barreling toward one of the most highly-charged confirmation battles yet over who will replace axed FBI Director James Comey.
Democrats are increasingly demanding the confirmation of Comey’s successor be put on pause until a special prosecutor is appointed to oversee the federal probe into possible collusion between the Trump campaign and Russian officials.
Republicans, meanwhile, are so far making no such conditions — and are urging President Donald Trump to quickly name a nominee to lead the nation’s chief law enforcement bureau.
Senate Democrats wield little leverage to block Comey’s replacement from being confirmed, considering any nominee can be approved by the chamber on a simple majority vote. And not every Democrat is prepared to make support for the next nominee contingent on a special prosecutor. But past FBI directors have earned essentially unanimous support from the Senate, steering the confirmation fight into uncharted waters if it turns into full-fledged partisan combat.
“I think that we ought to frankly hold off on the FBI director until we get the special prosecutor,” said Sen. Mark Warner of Virginia, the Democrats’ point person leading the Senate investigation into Russia’s interference in the 2016 campaign.
One red-state Democrat the GOP is gunning to defeat in next year’s midterm elections — Sen. Heidi Heitkamp of North Dakota — agreed the FBI confirmation process should wait until a special prosecutor is tapped.
“I think it’s critically important that the new FBI director who is advanced understands what the roles and obligations are going to be,” she said in an interview. And those obligations for the bureau, she said, should not include the Russia investigation.
New York Democratic Sen. Kirsten Gillibrand, who has aggressively opposed Trump’s agenda, tweeted, “The Senate shouldn’t consider a new FBI director until an independent special prosecutor is appointed to probe the Trump campaign & Russia.”
The emerging view from Democrats, while not unanimous throughout the 48-member caucus, echoes a strategy embraced by a small group of liberals who refused to back now-Deputy Attorney General Rod Rosenstein until he committed to appointing a special prosecutor to oversee the Russia probe. Rosenstein is leading the federal Russia investigation because of Attorney General Jeff Sessions’ recusal in March from Russia-related inquiries.
Sen. Richard Blumenthal (D-Conn.), one of six Democrats who opposed Rosenstein, vowed again to vote against confirmation of any replacement for Comey until a special prosecutor is selected.
“I hope that one will be chosen and appointed. It should be a priority,” Blumenthal said. “At least as important as a new FBI director is a special prosecutor who can assure independence and impartiality in this investigation.”
Though he was confirmed with 94 votes just last month, Rosenstein on Wednesday received scathing rebukes from even some key Democratic supporters in the aftermath of the Comey ouster. Sen. Dick Durbin said he regretted voting to confirm Rosenstein after reviewing the memorandum he drafted that laid out the rationale for dismissing Comey; Blumenthal said “I know” other Democrats have similar qualms.
“I think his credibility has been severely damaged and the only way to redeem it is to appoint a special prosecutor,” Maryland’s Sen. Chris Van Hollen said of Rosenstein, who was a federal prosecutor in that state until he was tapped as DOJ’s second-ranking official. “The mistake was for him to allow himself to be used by the Trump administration to fire the director of the FBI in the middle of an ongoing investigation into collusion between the Trump campaign and Russia.”
Confirmations for FBI directors rarely have been partisan affairs. According to the Congressional Research Service, every leader of the bureau since the Nixon era was confirmed unanimously by the Senate until Comey, who had just one dissenter when the chamber voted on him in 2013. That dissenter: Sen. Rand Paul (R-Ky.).
“The bar for that confirmation has been raised substantially,” said Sen. Bob Casey (D-Pa.). “If the replacement for Director Comey isn’t 100 percent unassailable, isn’t someone that every Democrat and every Republican would say that’s a good appointment, then I think they’re going to have credibility problems.”
Still, other Democrats stopped short of urging that an FBI already mired in partisan politics see its next director’s confirmation be delayed until an independent prosecutor is named. Sen. Mazie Hirono of Hawaii, who sits on the Judiciary Committee, declined repeatedly to link the next FBI director’s confirmation to her support for an outsider to lead the DOJ’s Trump-Russia probe.
Instead, Hirono repeatedly invoked the importance of “a bipartisan call” for the appointment of a special prosecutor — underscoring Democrats’ awareness that without more solid GOP allies, their pushback in response to Comey’s firing has no chance of paying off.
Privately, Democrats are mulling how best to achieve their goal of creating an independent investigation. The leading option being discussed is trying to persuade three Republicans to demand an independent investigation and then have all 48 Democrats threaten to block any nominee for the top post at the FBI.
Among the Senate Republicans not ruling out support for a special prosecutor Wednesday was West Virginia Sen. Shelley Moore Capito, who told reporters she is “not saying yes, but I’m not saying no” to the idea.
But Republicans have mostly resisted replacing Rosenstein with someone outside the Justice Department’s chain of command, and there were no signs Wednesday that they would make an FBI director’s confirmation contingent on a special prosecutor.
“I don’t think they should be able to bulldoze the president or anyone else on a special prosecutor,” Sen. Orrin Hatch (R-Utah) said of Democrats’ call to delay confirming a new FBI director. “We don’t need a special prosecutor.”
The timeline for choosing a nominee remains unclear. Sessions and Rosenstein are talking to candidates who could serve as an interim director while a permanent FBI chief is selected, according to DOJ officials. Senate Majority Leader Mitch McConnell (R-Ky.) has promised a “full, fair, and timely confirmation process” once a nominee is named to lead the FBI.
Yet Senate Democrats are already facing pressure from their base to keep up the fight against Trump, with liberal activist groups luring hundreds of people to a midday protest in front of the White House and scheduling Russia-focused demonstrations outside Senate offices in 22 states.
“I think that would be extremely helpful,” Sen. Ben Cardin (D-Md.) said delaying confirmation of Comey’s replacement until a special prosecutor is appointed. “It’s gonna be difficult to see a climate here on a nomination of an FBI director, under the current cloud.”