Gehrke: Lee should lead in defending the Mueller investigation, not be among the most visible critics

Francisco Kjolseth | The Salt Lake Tribune The Salt Lake Tribune staff portraits. Robert Gehrke.

We’re into the Holidays and, in the Spirit of the Season, I’m trying to be more positive. So let’s give some praise to Sen. Mike Lee.

Lee is crossing the party divide to co-sponsor legislation with Sen. Bernie Sanders — yeah, THAT Bernie Sanders — that would seek to end the U.S. support for the Saudi Arabian war against Yemen.

It is the worst humanitarian disaster on the planet, with famine caused by the war killing 85,000 children and leaving millions of more Yemenis near starvation.

On Wednesday, the Senate voted 63-37 to move the bill forward to a vote. It was a rebuke to President Donald Trump, seemingly fueled in part by his complete indifference to the Saudi-backed murder of journalist Jamal Khashoggi and his rejection of a unified assessment by U.S. intelligence agencies that Saudi Crown Prince Mohammad bin Salman ordered Khashoggi’s killing.

Sen. Orrin Hatch was one of the 37 votes, all by Republicans, to do nothing to stop the brutal massacre. I’m sure he’s proud of himself.

Lee, however, deserves praise for working across the aisle and trying to bring a humane end to a savage conflict. Good work, senator. You did the right thing.

OK. That’s enough positivity. Because earlier Wednesday, Lee did precisely the wrong thing.

He embarrassed his state by being the one senator to publicly object to a vote on another bipartisan bill that seeks to keep an erratic president from firing Special Counsel Robert Mueller and ending the investigation into Russian involvement in the 2016 election.

Trump’s growing desperation seems apparent in his recent Twitter rants at the special counsel’s probe. Every day this week he has attacked the Mueller probe.

“Mueller is a conflicted prosecutor gone rogue,” he said in one Tweet.

“"Did you ever see an investigation more in search of a crime?" he asked in another Thursday. "A total disgrace!”

“When will this illegal Joseph McCarthy style Witch Hunt … ever end?”

On Thursday, Trump’s lawyer, Michael Cohen, pleaded guilty to yet another criminal charge — admitting that he lied to investigators to cover up Trump’s involvement in a proposed Trump tower project in Moscow.

A plea deal with Trump’s former campaign chairman, Paul Manafort, crumbled after Manafort allegedly lied repeatedly to the FBI. In all, Mueller’s team has indicted or convicted 33 people in relation to the inquiry.

The witch hunt keeps turning up witches, and the coven is likely to grow — unless the president manages to stop it.

If you don’t think Mueller needs protection, consider that Trump has already fired the FBI director, forced out his attorney general and appointed an attorney general who said publicly earlier this month Mueller has gone too far. On Thursday, Trump said the Deputy Attorney General Rod Rosenstein should be in jail for having appointed Mueller.

The bipartisan bill in question, pushed by Republican Sen. Jeff Flake and Democratic Sen. Chris Coons seeks to deter the president from capriciously ordering Mueller’s firing by requiring that there be a stated reason or cause to justify the action — the same standard that applies to other federal prosecutors.

More importantly, it would require that the materials gathered by Mueller thus far be preserved and turned over to Congress. If nothing else, it sends a powerful message to the president that Congress has Mueller’s back.

Lee contends the president has total discretion to fire prosecutors and that bestowing any protections on Mueller — even the same protections afforded other federal prosecutors — would be unconstitutional.

He cited the late Justice Antonin Scalia in the 1988 case of Morrison v. Olson, wherein Scalia opined that congressional protection for an independent counsel creates a “fourth branch of government.”

But Scalia was the only justice who felt that way. Chief Justice William Rehnquist and six others pointed to language in Constitution that states that “Congress may by law vest the appointment of … inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the heads of departments." That gives Congress broad latitude when it comes to positions like a special counsel.

Lee believes that Scalia was right, everyone else was wrong. But really it seems like a convenient excuse, since the senator has been saying since June 2017 that there is no evidence of collusion and the probe should wrap up. (Hatch, too, opposed the legislation in a Senate Judiciary Committee vote in April).

Lee is capable of doing the right thing, as we saw with the Yemen bill. But if Utahns are waiting for him to stand up for the rule of law, rather than stand by while Trump continues to undermine the most important investigation since Watergate, we’re likely going to be disappointed, since it appears Lee is content to be on the wrong side of history.