When the smoke from the midterm election clears, one thing is certain: You will be seeing the name of Robert Mueller a lot more than you have for the past two months, no matter whether the Democrats manage to take the U.S. House or not.
For one thing, Mueller has kept himself and his investigation into Donald Trump’s campaign deliberately out of the headlines by observing the Justice Department custom of not issuing indictments connected to politics in the 60 days leading up to the election.
Just about the only real news related to the special counsel’s office has been a slow drip of information about the connections between Trump adviser Roger Stone and WikiLeaks. And that seems to have leaked from Stone and those around him, not Mueller’s team. (There was also some outrageous fake news designed to impugn Mueller’s credibility, but that faded fast.)
With the election over, Mueller will be back into action. His team will likely have more indictments to make.
Mueller will also have to decide how to communicate the information he has gathered to Congress. Last week, a federal judge ordered the release of a 1974 grand jury report that was part of special prosecutor Leon Jaworski’s report to Congress about President Richard Nixon. The document could have lessons for Mueller.
Of course, Mueller’s investigation has worked quietly and methodically so far, and we don’t know how quickly he might act after the election - only that he is free to do so.
If the Democrats win Congress, they will be able to initiate extensive oversight investigations into areas of Trump’s career and possible ties with Russia. That would certainly overlap with Mueller’s work, and add a further element of overt partisanship to the saga of the special counsel’s investigation and Trump’s efforts to discredit or end it.
More dramatic still, a Democratic House would have the ability to impeach Trump - even if it knew for sure that Republicans in the Senate would acquit Trump after a trial there.
That would raise the stakes considerably for whatever recommendation or report Mueller makes to Congress. Most Democrats played down the impeachment idea in the midterm campaign, judging (rightly or wrongly) that it would be more likely to turn out angry Republican voters than supportive Democratic ones.
That calculus could change with presidential elections still two years away. Impeachment would distract Trump from his agenda. It might weaken him to have to spend months or even years defending himself against detailed charges.
Mueller’s evidence would be at the center of any impeachment effort. His investigation, cleverly farmed out to the U.S. Attorney’s Office for the Southern District of New York, already got Trump’s former attorney Michael Cohen to testify under oath in open court that the president directed him to commit an election law felony. That would be a significant piece of any impeachment effort.
Mueller’s findings still need to be pinned down more precisely around the question of Trump campaign coordination with Russia, the very issue with which the investigation began.
With respect to the firing of FBI Director James Comey, it seems highly unlikely that there will be any more concrete information than what the public already knows.
The investigation has already uncovered compelling evidence that Russian intelligence operatives were involved in hacking the Democratic National Committee during the election. If Trump’s campaign was knowingly involved, then the whole setup begins to look much more like Watergate. The key question would then become, as it was in Watergate, what the president knew and when he knew it. The possibility of a coverup would loom large.
Noah Feldman is a Bloomberg Opinion columnist.