Why would President Donald Trump nominate to lead the FBI the same judge whose nomination to the Supreme Court Senate Republicans effectively filibustered a year ago?
It’s a good question. But Sen. Mike Lee (R-UT) floated the idea on Twitter Thursday that Merrick Garland should be the next FBI director after James Comey’s sudden ouster.
It’s almost inconceivable that Trump would nominate Garland to lead the FBI, and in turn to take charge of the same investigation into his campaign’s possible ties to Russia that reportedly pushed Trump to fire Comey.
But at least one Democratic senator, Amy Klobuchar (D-MN), appeared to be on board with the proposal. (Klobuchar later hedged, noting “to be clear, this isn’t going to happen,” but that it was “a good idea for Rs to think about consensus FBI candidates.”)
Way down at the bottom of his piece, Daley noted what seemed like a more earnest calculation: “His appointment would also open a seat on the U.S. Court of Appeals for the D.C. Circuit. Democratic appointees have a 7-4 advantage on the court, widely considered the second most important in the country, as it has jurisdiction over most federal agencies,” he wrote. “Trump’s allies in conservative legal circles would relish the prospect of another GOP appointee on the panel.”
Instead of a special prosecutor, @realDonaldTrump should nominate Merrick Garland to replace James Comey.
— Mike Lee (@SenMikeLee) May 11, 2017
A spokesperson for Lee, Conn Carroll, told the Daily Beast: “He’s been sharing this idea with other Senate staff, and communicated this to the White House. It’s something we want the administration to take seriously. There was some interest [from White House staff].”
Klobuchar responded eagerly, at first:
— Amy Klobuchar (@amyklobuchar) May 11, 2017
Lawfare editor Benjamin Wittes pointed out the obvious flaw, already noted as a benefit by Daley: Garland would think twice before giving up a lifetime appointment on the extremely influential D.C. Court of Appeals to serve a 10-year term as FBI director, one which Trump demonstrated Tuesday he is willing to abruptly cut short.
This post has been updated.