Flake refuses to vote for Trump’s judicial nominees until the Senate acts on bill to protect Mueller

Sen. Jeff Flake (R-Ariz.) speaks with the media on Wednesday. (J. Scott Applewhite/AP)

Arizona Republican Sen. Jeff Flake said Wednesday that he would not vote for any more of President Trump’s judicial nominees until the Senate votes on a bill to prevent special counsel Robert S. Mueller III from being fired — a pledge that could complicate Republicans’ hope to confirm dozens of conservative judges before the end of the year.

Flake’s warning will likely force Republicans to rely on Vice President Pence to confirm any of the 32 judicial nominees pending before the full Senate, as panel Democrats are unlikely to vote for those who Flake has committed to oppose. It also means that Republicans will likely have to go around the Senate Judiciary Committee, where the GOP has only a one-seat majority, to advance any of the 21 nominees waiting for that panel’s endorsement. That also will require Pence’s tie-breaking vote.

Flake issued his threat after Senate Majority Leader Mitch McConnell (R-Ky.) blocked Flake and Sen. Chris Coons (D-Del.) from holding a vote on the bill, which would give any fired special counsel the ability to swiftly challenge their termination before a panel of three federal judges. Most Republicans — including co-authors Sens. Thom Tillis (R-N.C.) and Lindsey O. Graham (R-S.C.) have argued that the bill is unnecessary because Trump would never dare fire Mueller, whose ongoing probe of Russian interference in the 2016 election has sought to learn whether anyone in Trump’s campaign conspired with those efforts.

Flake challenged that rationale, given Trump’s recent decision to appoint Matthew G. Whitaker as acting attorney general and give him oversight of the Mueller probe. Whitaker has made past statements that are critical of the investigation. Flake said he believes Whitaker should recuse himself from the Russia probe, letting deputy attorney general Rod J. Rosenstein reassume authority over it.

“The president now has this investigation in his sights and we all know it,” he said on the Senate floor Wednesday.

“You use what leverage you have,” he added later, explaining why he made his threat to block judges to force a vote on the legislation. “This is a priority now.”

Flake is retiring at the end of the year, at which point his threat to block judges from being confirmed will no longer complicate the confirmation process. But he and Coons said they hope to convince other Republicans to join their effort. If one more Republican does, they and the Democrats would be able to prevent Trump from getting any of his judicial nominees confirmed in 2018 — a move that Flake guessed would at least send a strong message about the importance of the special counsel bill.

“We are confident [the bill] would get 60 votes if given a vote,” Coons told reporters. “It is time for us to move from speech to action.”

One senator that Coons and Flake may target in the days ahead is Sen. Susan Collins (R-Maine). Last week, she said that she thought the Senate should vote on the bill, which would give any fired special counsel the ability to appeal their termination to a panel of three federal judges.

“Senate debate and passage of this bill would send a powerful message that Mr. Mueller must be able to complete his work unimpeded,” Collins said in a statement, in which she also said she was “concerned” about Whitaker’s views on Mueller’s probe.

This is not the first time Flake, who is retiring at the end of the year, has broken from his party to team up with Coons. Last month, the duo joined forces to push the Senate to demand an FBI investigation into sexual assault allegations made against Brett M. Kavanaugh before voting on his nomination to the Supreme Court. In that instance, they succeeded.

Earlier Wednesday, the Justice Department issued a memo defending the legality of Whitaker’s appointment. Some legal experts have suggested that Whitaker, who was Sessions’s chief of staff, is ineligible for the attorney general job, even on an acting basis, because he was not confirmed by the Senate.

Devlin Barrett contributed to this report.