Democrats who thought the sudden dismissal of FBI Director James Comey would finally jolt Republicans to back a special prosecutor to investigate Russian meddling in the 2016 campaign are going to be sorely disappointed.
Even Republicans who’ve criticized the timing behind the abrupt firing aren’t yet willing to trigger a confrontation with the Trump administration by demanding an independent counsel.
“I say, let’s see who he nominates to replace Comey,” Sen. Jeff Flake (R-Ariz.), who tweeted after Comey’s firing that he could not find an “acceptable rationale” for its timing, said of a special prosecutor. “You never rule anything out, but I’m not going there. I don’t want to jeopardize the Senate investigation going on.”
It’s a familiar dance between Donald Trump and the congressional GOP: Trump does something widely seen as a brazen violation of political norms. Even as some Republicans call him out, most defend Trump’s actions or decline to take action directly challenging his administration.
In this case, Republicans are hoping Trump will soon name a new FBI director who’s respected by members of both parties, and that congressional investigations into Russian meddling will proceed.
To date, only Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.) have called for an independent probe — but they did so five months ago. A growing number of House Republicans are now open to some sort of an independently-led investigation, but that movement hasn’t translated to the Senate.
Publicly and privately, GOP senators who were unhappy with Trump’s dismissal of Comey say they don’t want to interfere the probe being led by the Senate Intelligence Committee, even though that effort is separate from the federal investigation that Comey had led before his sacking on Tuesday.
“Forget the FBI investigation even. We’ve got an investigation here in the Senate that appears to be moving toward a resolution,” one Republican senator said. “If that would change, there might be a change in attitude.”
Indeed, most Senate Republicans are counting on the Senate Intelligence Committee — led by Chairman Richard Burr (R-N.C.) and Sen. Mark Warner (D-Va.) — to conduct the investigation into Russian meddling into the 2016 campaign. The committee, though, lacks power to prosecute, and the probe is moving at a pace that some Democrats believe is too slow.
Republicans have pointed out that Congress also does not have the authority to recommend or appoint a special prosecutor. An independent counsel law that had given lawmakers that power lapsed in 1999 amid the acrimony over Kenneth Starr’s investigation of former President Bill Clinton.
But that hasn’t deterred Democrats, who are trying to ramp up pressure on the Justice Department to select a special prosecutor amid the controversy swirling around Deputy Attorney General Rod Rosenstein, the No. 2 Justice Department official who played a key role in the Comey firing.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), whose panel oversees the Justice Department, said Thursday he is considering asking Rosenstein, as well as Attorney General Jeff Sessions, to testify about the Comey firing. Rosenstein is expected to accept an invitation from Senate leaders Mitch McConnell (R-Ky.) and Chuck Schumer to brief all senators next week on his role in the Comey matter.
Some Senate Republicans said they aren’t outright rejecting the possibility of an independent counsel to take the deputy attorney general’s place. Sen. Shelley Moore Capito (R-W.Va.) has declined to rule out such a move, as has Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.).
“I’m listening to arguments and I’m not closed to any particular solution,” Corker said when asked whether there were any circumstances in which he could support a special prosecutor.
But without buy-in from GOP leadership, it’s unlikely that any probe taking the investigatory powers out of either Congress or the Justice Department’s chain of command will materialize.
Senate Majority Whip John Cornyn of Texas said “everybody’s entitled to their own opinion” in the ideologically diverse 52-member conference.
“We’ve got a select committee: The Senate Select Committee on Intelligence,” Cornyn said. “We’re getting unprecedented access to intelligence information that no one else has access to … no other substitute committee would duplicate that kind of access.”
McCain said he has privately reached out McConnell about the Arizonan’s proposal to appoint a select committee (as opposed to a special prosecutor) to handle the Russia investigation. McConnell disagreed, but McCain is unbowed.
“The first priority is a select committee,” McCain said. “My view is, it worked in the past.” He is not keen on going the special prosecutor route. “Many times in the past, the wrong person is selected as a special prosecutor and it is turned into a debacle.”
Graham is arguing against a special prosecutor for now because the current federal effort is a counterintelligence investigation and there is no apparent criminal target, but the South Carolina Republican said he is open to discussing an independent counsel if it evolves into a criminal probe.
“I trust Rosenstein to be fair,” Graham said Thursday. “A select committee, I’ve always supported that … If we’re all working together it would probably be more coherent.”
Asked about the dearth of Republican support for that idea, Graham said: “You’ve got me and John.”
Sen. Rand Paul (R-Ky.) said he’d need to see “some evidence that people investigating it are not doing a good job before we want to have something different.”
“I haven’t heard anybody accused of a crime yet,” Paul said. “Accuse someone of a crime, show they did something wrong, show us some evidence. Just to have an investigation to have an investigation, I don’t think is a good idea. We’ve got plenty of investigations.”
“It’s a bipartisan committee, let’s remember,” Sen. Joni Ernst (R-Iowa), who has at times broken with Trump, said of the Senate intelligence panel. Asked whether she could support an independent probe, she said: “Not at this point, no.”
Austin Wright contributed to this report.