HH: Andrew McCarthy is a former senior federal prosecutor, the man who put the Blind Sheikh behind bars and now a senior fellow at the National Review Institute. Welcome back, Andrew. I want to get your original thoughts on the memo.
AM: I’m sorry, Hugh, I didn’t get that.
HH: Your overarching thoughts on the memo?
AM: You know, I think the original sin here, Hugh, is that none of this should ever have been played out publicly. And the big problem here that nobody is talking about, frankly, is the classified leaks. What’s supposed to happen in an investigation like this is somebody like Mr. Page, if they think that there really is a basis to believe he’s not only a Russian agent but involved in clandestine activities that violate U.S. law, which as we know, that’s the standard that you have to meet to get a warrant on an American citizen. This is all supposed to happen in a secret, classified setting. And the reason that it hasn’t is because there was a steady flow of leaks of classified information to the media, which was designed to attack Trump, his campaign and his government, ultimately. And that’s the reason this is all being played out in the press. There may be any number of situations in which a FISA warrant such as this one has insufficiencies in it. We hope that that gets policed in the process where the Justice Department you know, meets up with the FISA Court and they have exchanges over these surveillance applications. But none of this is supposed to be played out in the press. And I think, you know, for whatever anybody thinks of the Nunes memo, I think that given the torrent of leaks that we’ve had, it was valuable, and it is valuable to get a real sense from a process of what actually went on here. And I think the memo serves that purpose.
HH: Andrew, there are two things that stand out to me. The first is that Rod Rosenstein approved the last extension of the Carter Page. Here’s a tape of me asking Rachel Brand, the associate attorney general, number three in the department, late last year what happens if Rod Rosenstein had to recuse himself.
HH: What happens if Mr. Rosenstein, God forbid, gets hit by a bus or gets recused because of this memo? Do you take it over then?
RB: In the order of succession, yes, but I don’t like to engage in hypotheticals about that. So I’m focused on doing my job every day, which does not include that. And I don’t have any reason to expect that it will.
HH: So Andrew McCarthy, Rod Rosenstein co-authored a memo with Pete Sessions urging Jim Comey be fired. And now he turns up as having signed the FISA application for a warrant on Carter Page. So he’s intertwined with this whole thing. He’s got a huge reputation, very well-respected. But do you think he ought to recuse himself from supervising Mr. Mueller?
AM: Well, Hugh, that now depends on what this whole thing is, right? So if this whole thing is what it was represented to be from the beginning by the testimony that former FBI Director Comey gave, and from everything that was described to us at the beginning, that is to say this is a counterintelligence investigation, the principal aim of which is to get to the bottom of Russian efforts to interfere with an American election, I don’t see any reason why Rosenstein needs to be recused. You know, I’ve been critical of some of the steps that he’s taken in the course of the investigation, but if what we’re about here is an intelligence gathering exercise, I don’t see the need for recusal. To the contrary…
HH: All right, let me ask you the second…
AM: If it’s, I can just finish, if this is a criminal investigation, and if, for example, they’re trying to make an obstruction of justice case on Trump, and there is anything to do with that case that has to do with Jim Comey being fired, and if there’s anything to do with this case that has to do with the evidence that was gathered in this FISA, if it’s going to be thrown over the intelligence wall and become part of a criminal investigation, then I don’t see how he can stay.
HH: Interesting. Okay, that’s very nuanced. Let me read to you, Andrew, you and I both know a lot of former federal judges, a lot.
HH: This came to me this morning from a former federal judge about whom there is nearly universal respect. I’m not going to tell you the name. Hugh, there is not an officer of the court in the land who in the context of this particular application to the FISA Court would not have identified the source of the information as having been the DNC and the Clinton campaign. If I had granted the application and then subsequently learned that the information was sourced to the DNC and the campaign, I, the judge, would have rescinded the authorization, and issued a show cause order to the government to explain who and why this sourcing was not made known to the court. The fact if it be that, that the government told the court that it was a political source but did not identify who in this particular instance, is highly probative that the government purposefully misled the court. What say you, Andrew McCarthy?
AM: I agree with that assessment. I think that if a federal judge was made to understand the precise sourcing here, they would have told the Justice Department to go back and redraft the application and put all of the relevant information in. You know, to say it’s a political source doesn’t do justice to what actually happened here. I mean, this is during the course of a political campaign, and it’s information that’s bought and paid for, and unverified based on like fourth hand unidentified sources. What paid for by one political campaign, and it’s targeting at another political campaign, so any federal judge would want to have that information. And Hugh, an important reason for that is that unlike a criminal wiretap situation where everybody goes in with their eyes open that whatever work we give to the court here, if you’re the prosecutor or the agent, you know that someday this is going to be a criminal case. It’s all going to be disclosed. It’s all going to be revealed. Defense lawyers are going to pick over it. The trial judge is going to pick over it. You have a certain discipline about what you do in the way of disclosure and respect for the party’s rights. This is the black box of intelligence information where we never get to see this stuff. And if there’s not a level of candor between the Justice Department and the FISA Court, where the court feels that it can’t trust what it’s being told, and the Justice Department is putting all its cards on the table, warts and all, if I can mix my metaphors, then the process breaks down.
HH: It clearly is broken down here, and I go back to the fact that a material fact was omitted from a FISA application that surveilled an American citizen for what might have been up to a year, and that four different people approved it. Director Comey approved it three times. Acting Director McCabe approved it once. Do you think any of them recognize, now I go back to my experience. I did hundreds of these, and they’re very thick and they’re very long. You might miss stuff. You think they knowingly, and from your opinion, your understanding of everything, Andrew, you think they knowingly withheld that information from the court?
AM: I sure hope not, but you know, I think there’s two things going on here that we have to consider. One is the law, and one is practical reality. The law is that you would expect that the approval that the Attorney General and the heads of the FBI have to give is at a kind of a 10,000 foot level to make sure that the statute is being complied with. That is all the things you have to show are being showed. And under those circumstances, you could easily see an attorney general, an FBI director, missing some important facts because that’s not their job. That’s the job of the people who are closer to the actual investigation. But here, you have a really fraught political situation where you’re targeting for investigation somebody who has, now I know the connection was formally broken, but you have somebody who does have a connection to the Trump campaign. You know that you’re relying on information that you’ve gotten from the opposition campaign. And it seems to me that there was a higher obligation in this particular circumstance for even the highest level people to become more acquainted with the facts than maybe they would have in a different investigation.
HH: I agree with that. My thanks to Andrew McCarthy, very many thanks. I’ll be right back.
End of interview.