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3 key ways the midterms matter for Robert Mueller's investigation

“If the Democrats take control of the House, there’s a likelihood that the House Judiciary Committee would subpoena any report that Mueller writes.”

by Greg Walters
Nov 1 2018, 1:12pm

Special counsel Robert Mueller’s Russia probe has been conspicuously absent from campaign ads and debates in the run-up to next week’s midterm elections.

But this election promises to have a big impact on how Mueller’s investigation plays out in its final stages, former Congressional staffers and legal experts told VICE News.

If Democrats win control of Congress, even by a wafer-thin margin, Mueller will suddenly gain a small army of powerful new supporters with the ability to launch their own parallel investigations, experts said. If Republicans retain control, Trump may feel emboldened to try to curtail the investigation, without fear of serious political resistance.

Though experts are reluctant to predict what comes next out of Mueller’s famously tight ship, the midterms sharpest impact may be determining whether the public ever gets to read Mueller’s final report.

“There no provision for sending the [Mueller] report to Congress,” said William Treanor, who served as associate counsel in the Office of Independent Counsel during the Iran-Contra investigation. “But if the Democrats take control of the House, there’s a likelihood that the House Judiciary Committee would subpoena any report that Mueller writes.”

With less than a week before the vote, here’s what you need to know about how the midterms could affect the Mueller investigation.

THE MUELLER REPORT

Mueller’s probe went quiet in the run-up to the elections. But it’s widely expected to roar back to life after the voting is done. When it does, it’ll boast an impressive list of big-name cooperators who once belonged to the top ranks of the president’s inner circle, including ex-campaign chairman Paul Manafort and Trump’s former personal attorney and “fixer” Michael Cohen.

Yet despite the considerable progress Mueller’s made so far under intense public scrutiny, his endgame remains hard to predict.

One thing we do know is that Mueller will eventually have to submit a “confidential report” to his boss, Deputy Attorney General Rod Rosenstein — a requirement spelled out in the special counsel regulations.

The rules stipulate that he has to explain his prosecutorial decisions to Rosenstein, but they don’t say this report has to be made public. And, pending the outcome of next week’s elections, Trump’s DOJ may move to limit what gets shown to Congress, let alone posted on the internet.

“All these main targets, or key witnesses, in the Mueller investigation, can be made to testify before House committees.”

That means Democrats will likely need to grab control of at least one chamber of Congress in order to even read Mueller’s report, legal experts said. They could do so by subpoenaing the document, but that requires they win a majority in either chamber.

Read: How an ex-marijuana farmer became conservatives' latest hope to take down Robert Mueller

If Democrats win control of the House, they’ll immediately start looking for ways to turn up the heat on Trump, experts said. One route might be to recap the Mueller probe’s greatest hits for the public, by subpoenaing his witnesses and cooperators — people like Manafort and Cohen — for fresh rounds of open testimony before Congress.

“All these main targets, or key witnesses, in the Mueller investigation, can be made to testify before House committees,” said Charles Tiefer, a professor at the University of Baltimore School of Law and former special deputy chief counsel for the House Iran-Contra Committee's investigation during the Reagan era. “And House Democrats will have every reason to do that.”

A path to impeachment?

President Donald Trump arrives at the White House in Washington, Tuesday, Oct. 23, 2018, from a campaign rally in Houston. (AP Photo/Manuel Balce Ceneta)
President Donald Trump arrives at the White House in Washington, Tuesday, Oct. 23, 2018, from a campaign rally in Houston. (AP Photo/Manuel Balce Ceneta)

Democratic voters have been revved up by the prospect of impeaching Trump in the wake of a blue wave. As recently as last January, 66 House Democrats cast symbolic votes in favor of impeachment. And If Mueller uncovers serious wrongdoing by Trump, calls for impeachment will no doubt kick into high gear.

But booting Trump out of office would require a simple majority vote in the House, followed by a two-thirds conviction in the Senate. No matter what happens in next week’s election, the Democrats won’t get that number on their own, Congressional experts said.

“It’s hard to see the Senate convicting, even if the House were to impeach.”

Most of the Senate seats up for grabs this year are now held by Democrats. So even if the Dems win every Senate race, they’d still need roughly a dozen Republican Senators to cross the aisle and support getting rid of Trump.

“It’s hard to see the Senate convicting, even if the House were to impeach,” said Treanor, who’s now dean of the Georgetown University Law Center.

Democrats seem wary of the lessons of Republicans’ failed attempt to impeach Bill Clinton in the 1990s — a campaign that left many voters feeling that Congress had gone too far.

House Minority leader Nancy Pelosi and other top Democrats appear to have gotten the memo. They’ve tamped down any talk of impeachment as the midterms draw near.

Protection for Mueller and new probes

Trump’s supporters inside and outside of Congress haven’t been shy about trashing the Mueller investigation as a biased “witch hunt.”

In July, a group of House conservatives, led by Rep. Mark Meadows of North Carolina and Rep. Jim Jordan of Ohio, formally began the process of impeaching Mueller’s boss, Rosenstein. The effort was short-lived. But it was widely seen as a shot across Mueller’s bow, and a taste of what might come after the midterms if Republicans retain control of Congress.

If Republicans somehow keep both the House and the Senate, which pollsters suggest is highly unlikely, Trump may finally feel emboldened to clip Mueller’s wings, analysts said.

And he won’t even need to fire Mueller to impede the investigation.vInstead, he could fire Rosenstein and seek to replace him with someone more likely to put restrictions on the probe, slash its budget, curtail its scope and keep any final report under wraps.

“I think you will see investigations into the president’s private business dealings if Democrats win the House.”

The more likely outcome appears to be a split, with the Democrats picking up control of the House and the Republican retaining the Senate.

If that happens, the Democrats will have a powerful new tool to play with in 2019 and beyond: Committee investigations.

Such investigations could prove potent against Trump, serving as reinforcement for Mueller’s probe and pressing into new areas beyond Mueller’s mandate, such the president’s business.

“I think you will see investigations into the president’s private business dealings if Democrats win the House,” said Harry Sandick, a former federal prosecutor.

And they don’t need much to realize this reality. Simply winning control of the house, even by one vote, would hand control of all the committees to Democrats who appear poised to unleash a volley of subpoenas against the White House and Trump’s companies, experts said.

And unlike Mueller’s famously silent, leak-proof investigation, Congressional committees are designed to be transparent, experts pointed out. That means a much greater share of what they uncover would immediately become public.

“There is a lot of information out there that a committed investigative Congressional body can get to that nobody has seen yet,” said Andrew Wright, who served as the staff director of the House Oversight and Government Reform Committee, and as associate counsel to ex-president Barack Obama. “I think that’s the really big ticket item. That’s going to be huge.”

Cover image: Then FBI Director Robert Mueller smiles as he speaks at the Justice Department in Washington, Thursday, Aug. 1, 2013, during his farewell ceremony. (AP Photo/Evan Vucci) (AP Photo/Evan Vucci)

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