Special counsel Robert Mueller is set to emerge from his midterm campaign hibernation period with a powerful new ally as House Democrats surged back to the majority in Tuesday’s elections.
The lead Russia investigator, who in the days and weeks ahead has a series of important court hearings and key sentencing deadlines for cooperating witnesses, will soon have a friendly audience of Democratic chairmen on one end of Capitol Hill who are primed with subpoena power to fight the White House if it tries to block the public release of his final report examining any potential connections between the 2016 Trump presidential campaign and Kremlin-sponsored hackers.
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House Democrats say they’re also ready to act as a backstop if Trump follows through on more than 18 months of pent-up angst and fires Mueller or tries to meddle with the special counsel’s work through a major shakeup atop the Justice Department.
Democratic leader Nancy Pelosi has already pledged to make sure Mueller’s “documentation is preserved” and the likely next House speaker also holds in her back pocket the threat of launching impeachment hearings against Trump if the president tries to oust Mueller or if the special counsel’s investigators ultimately uncover a smoking gun involving criminal behavior.
Democrats are even prepping a break-glass scenario in case there’s a Nixon-era Saturday Night Massacre where Trump fires his current DOJ leadership and tries to shutter the Mueller probe in the process. If that happens, senior Democratic officials say Mueller would likely get an immediate summons to Capitol Hill for nationally-televised testimony about his findings.
“I think you could expect Democrats to take pieces of what they shut down and expose it publicly,” said a high-ranking Democratic policy adviser familiar with Pelosi’s planning. “This is a report paid for with taxpayer dollars. So taxpayers would have a right to know what Mr. Mueller found.”
The Democrats’ midterm victory also gives Mueller company in his search for answers about what happened more than two years ago between Trump’s presidential campaign and Russian hackers accused of stealing Democratic emails and releasing them in a bid to help a rookie Republican politician win the White House.
Republicans had embarked on sporadic efforts to interview key witnesses tied to the 2016 election but Democrats had long complained that the hearings were window dressing for a broader effort to discredit Mueller and his probe.
Now, Democrats have the power to act on dozens of their own long-bridled demands for information and witness interviews — and can share their findings freely with Mueller.
They plan to ship dozens of transcripts — collected during interviews with the likes of longtime Trump associate Roger Stone and Donald Trump Jr. — over to Mueller for possible prosecution on perjury charges. They want Justice Department briefings on allegations Trump directed his then-personal attorney Michael Cohen to break campaign finance laws during the 2016 White House race in order to silence an adult film actress who claimed to have had an affair with Trump.
They’re also in position to examine Trump’s pardon powers, which they’ve warned the president may try to use to insulate himself from legal exposure in the wake of guilty pleas from Cohen and former Trump campaign chairman Paul Manafort.
Rep. Adam Schiff, the incoming chairman of the House Intelligence Committee, has said he’s planning to re-open his panel’s shuttered Russia investigation using as a roadmap a list of about 70 people, organizations and companies who Democrats say the GOP failed to adequately examine.
Early Wednesday morning, Schiff also said Democrats have an opportunity to finally do what their Republican colleagues refused to — protect Mueller.
“I think that the chances that Bob Mueller will be able to finish his work improved for the reason that our committee and others like the Government Reform Committee and the Judiciary Committee, which under Republican leadership served as basically surrogates for the president in their efforts to batter down the Justice Department, to give the president a pretext … to fire people in the Justice Department, all of that tearing down of the independence of these institutions is going to end,” Schiff said on MSNBC. “Now that doesn’t mean the president can’t still act in ways that are antithetical to the rule of law and the interest of justice, but it does mean that we’re better able to protect our institutions and see this investigation I hope complete.”
Sensing Democrats’ eagerness to exercise their newfound power, Trump on Wednesday morning issued a preemptive strike.
“If the Democrats think they are going to waste Taxpayer Money investigating us at the House level, then we will likewise be forced to consider investigating them for all of the leaks of Classified Information, and much else, at the Senate level. Two can play that game!” Trump wrote on Twitter.
And while Pelosi has so far publicly urged restraint to make sure her colleagues don’t overplay their hand and invite a public backlash, new avenues of Democratic inquiry are also expected. They include a subpoena to finally see Trump’s personal tax returns and a closer examination into allegations the Trump Organization has been a haven for money laundering.
Campaigning in Indiana Monday, Trump shrugged off a question about whether Democrats will soon turn up the pressure on him by demanding his tax filings.
“I don’t care,” the president said. “They can do whatever they want, and I can do whatever I want.”
Top White House adviser Kellyanne Conway struck a similar note when asked on CNN Wednesday morning if Trump was nervous about Democrats trying to get his tax returns.
“They may try. They may try,” Conway said. “The president is not nervous about anything.”
While House Democrats are expected to turn up the heat on Trump beginning in January, the newly-emboldened lawmakers and Mueller seem unlikely to always be on the same page.
New congressional digging into ground the special counsel has already trod — some publicly, some behind the scenes — could create legal complications. But while the incoming Democratic leadership team has pledged not to step on Mueller’s toes, they also recognize their own political challenges that come with the start of a new presidential campaign cycle and a new crop of freshmen lawmakers who will be agitating for impeachment and aggressive oversight into the president’s behavior.
Democrats also must deal with the reality that the special counsel’s end game remains a mystery. Sure, Mueller has fueled speculation he may be winding down through his quick pace in prosecuting several top former Trump aides and most recently by shedding a couple prosecutors.
But Mueller also still has no public deadline to finish his work, and some experts in presidential investigations caution against jumping too quick to conclusions on when the probe will be over.
“I think Mueller’s mindset is you can’t still be investigating 2016 as 2020 approaches. I’m sure he’s determined to get back to the rest of his life,” said John Q. Barrett, a former associate counsel who worked under independent counsel Lawrence Walsh during the Reagan-era investigation into secret U.S. arms sales to Iran.
“I can’t imagine that we’re looking at something that is going to be a few more years,” he added. “On the other hand, the facts will determine that. An investigation is what an investigation finds.”
Mueller’s calendar through the end of 2018 is packed with sentencing dates for several one-time Trump associates who have since become cooperating witnesses. The special counsel’s prosecutors and attorneys for Manafort have a Nov. 16 deadline to file their next status report with the courts. Cohen has a sentencing date set for Dec. 12 in New York, where he pleaded guilty in a case referred by Mueller’s office. Former national security adviser Michael Flynn also has a sentencing date set for Dec. 18.
The special counsel’s lawyers are also scheduled to appear in federal appeals court on Thursday in Washington D.C. for oral arguments in a case involving an aide to longtime Trump associate Roger Stone challenging the constitutionality of Mueller’s appointment and his subpoena powers.
More criminal prosecutions also appear to be in the works. Stone has been bracing for months for an indictment as he’s watched about a dozen of his associates testify before the special counsel’s grand jury in Washington.
Trump’s own legal culpability remains a mystery, too.
Mueller’s shown no cards yet in his determination into whether the president obstructed justice when he fired FBI Director James Comey in May 2017. Trump, meantime, said publicly for months that he was willing to testify to the special counsel but he has since backed away from that offer, with his lawyers now insisting that the most the Russia investigator will get are written answers after the midterms.
In Congress, House Democratic aides say they’ve been looking for ways to build off a letter their members penned while in the minority that would amplify the pressure on the president to sit down for an interview with Mueller.
Then there’s impeachment. Some freshmen Democrats elected Tuesday campaigned on a pledge to begin the controversial removal process with Trump. They’ll arrive in Washington facing off against a leadership team that’s been warning about the potential for overreach and with many veterans from the Bill Clinton impeachment saga who are urging patience as Mueller finishes his work.
“There needs to be clear evidence of conduct that is impeachable and right now we don’t know of any,” said Julian Epstein, a chief counsel for House Judiciary Committee Democrats during the 1998-1999 Clinton impeachment fight. “It all depends on what the Mueller report will produce.”
Even with the Democrats’ victory, Mueller’s Justice Department supervisors are also likely to be different in the not-so-distant future.
Trump’s patience has grown increasingly thin with both Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, and the two officials appear headed for the exits. Democrats say that how the White House goes about those moves — and who he picks as replacements — will be watched closely for any sign that Trump and his aides are trying to meddle with Mueller.
“I think the folks inside the White House have got to imagine that’s more risky than it’s worth,” Epstein said. “They’ll open themselves up to endless investigation and subpoena.”
In recent days partisans have provided some of the more dramatic predictions for how the midterms will shape the Mueller probe.
MSNBC host Lawrence O’Donnell said on his program last week that Democrats winning the House means “Donald Trump is going to be more terrified than he has ever been in his life, and Robert Mueller is going to be instantly more empowered knowing that a Democratic House of Representatives will not ignore his report the way a Republican House of Representatives would try to and probably succeed in ignoring it.”
Trump’s allies counter that Democrats should strap in for a fight each time they try to push for materials from Mueller that aren’t supposed to be made public.
Under Justice Department regulations, Mueller’s reports are only required to be transmitted to Capitol Hill if his supervisors reject a major decision. A final report from Mueller — detailing the people he has decided to prosecute and those whom he hasn’t — must go up the DOJ chain of command, which would then face the question of whether to make it public or send it to Congress, where House Democrats seem certain to use their new powers and instantly release it.
But Trump’s advisers have said the president will try to halt the special counsel’s findings from reaching the public by insisting the materials are investigation-sensitive and in some cases subject to executive privilege. And after Mueller does finish his work, they say the Trump appointees running Justice will put up a fight against Democratic subpoenas.
“They’re not going to turn over stuff to the House,” said Joe diGenova, the Trump informal legal adviser who nearly joined the president’s team earlier this year. “They’re going to litigate all the way to the Supreme Court.”