Former AUSA Andrew McCarthy on The Rice Affair:
HH: I just tweeted out up now, Andrew C. McCarthy on the domestic spying of Susan Rice, #SusanRice. Andrew McCarthy of National Review, former assistant United States Attorney, prosecutor of the Blind Sheikh, author of many fine books, is it a fair way for me to characterize Susan Rice, domestic spy?
AM: Well, we don’t know that quite yet, Hugh, but it certainly looks like it could trend in that direction. You know, the thing I try to caution people about this story, which I think is potentially a Watergate-level scandal, is that if you’re looking for a crime here, other than the leaking of classified information to the media, which is a serious felony crime, they’re going to be hard to come by, because we’re dealing here in the gray area of regulation and minimization and instructions and guidelines. And it’s a lot more like, as I’m going to try to explain later today in a piece that’ll go up on National Review later this morning, this is more like what you find in, for example, the second impeachment article of the Nixon impeachment, where Congress talked about the misuse of the FBI and the CIA and the IRS to investigate, or to invade people’s privacy and infringe on their Constitutional rights, not necessarily a crime, but it’s not really the issue of whether something is technically a violation of a penal law is beside the point when you’re putting it up against abuse of power, which is much, which is actually a much more heinous offense.
HH: The abuse of power, which was at the heart of the Nixon impeachment, is with what I am most familiar. And it does not necessarily involve the breaking of law. It does involve the abuse of power. And it’s a political crime. That’s why domestic spying, as I phrase it, is not actually a felony anywhere.
HH: Leaking is a felony. We do have felonies out there. But the idea that there are out there spreadsheets of every contact and call that Trump associates had, and I don’t know that that’s been confirmed, yet. That’s an allegation that people are working on. That brings to mind Charles Colson and the plumbers. And I know these guys. Charles Colson was a buddy of mine.
HH: And it gives you shudders. That’s police state stuff.
AM: Well, it’s also, it runs inconsistent to what their storyline has been all along, which is that there’s nothing to see here, because these are incidental interceptions. Now when you sit down, and again, you’re quite right to be cautious about this. If this happened, but if it did happen, and you’re talking about spreadsheets, it becomes very hard to accept the premise that the interceptions were incidental, because we have to keep reminding people of this, the objective of foreign intelligence collection is to understand the actions and intentions of foreign powers. The American people who inadvertently, incidentally get caught up in it are not supposed to be the objective of the intelligence operation. And if you’re starting to make spreadsheets and do all kinds of intelligence collection and analysis on the Americans who have supposedly been incidentally captured in terms of their surveillances, then that doesn’t sound very incidental anymore.
HH: Now Andrew, you had more experience with this than I did. But for six years, I had access to raw intelligence. When you’re preparing warrants for the Foreign Intelligence Surveillance Court, one year in the White House with the raw background intelligence on appointees that I’d have to carry up to the Senate for the senators to look at. You’d never leave it. And then years at OPM doing the OPM background checks. Never once did I ever ask to see a concealed identity. And so I am trying to establish a baseline so people understand how rare this is. Yesterday, Tom Cotton, member of the Senate Intelligence Committee, I asked him if his two years on the Intelligence Committee, he had ever asked for an unmasking. He said no. There are 15 members of that committee. I asked him if he was aware of any of his colleagues ever asking for an unmasking. He said no. I don’t think it happens. I just don’t think it happens. Explain to people why it just doesn’t, you don’t do that.
AM: I think, Hugh, the reason that there’s confusion about this is that for years, we adopted, I don’t know when this started, but this expression the intelligence community, which makes people think that the, or leads people to think that the 17 different components of the U.S. intelligence community, the different agencies, as if they were one big undifferentiated whole. And the truth of the matter is there’s three organizations, primarily, that do collection and analysis, and basically that refine raw intelligence into comprehensible reports that can be consumed by the other 14 or so agencies. That’s the FBI, the NSA and the CIA. Those organizations know what it is that they’re looking for and why. For example, we’re told by Director Comey, this was actually an extraordinary admission on his part. I don’t know why he said this publicly, but he says that they are investigating Russia, including the Russian meddling into the election, including any potential connections between Trump and Russia. And that’s very odd for the FBI to say that, because they usually deny the existence of an investigation, and they certainly don’t talk about what the, what and who the subjects are. But if we assume for the moment that that is going on, and there’s no reason to think it’s not, the FBI in collecting intelligence about Russia and Trump in that, and the Trump people in that context, know more about their investigation than any other agency in the intelligence community. And obviously, they, when they make the call about whether an American’s identity needs to be revealed or not, they do it with an understanding that’s superior to the other agencies of what the significance of that American person it, and whether the person’s identity is really necessary to exploit the intelligence value of what you’re finding out about the foreign power. So by the time someone like the White House Counsel, which is an arm of the White House, the White House staff, and is a consumer of intelligence, not an analyst of intelligence or a collector of intelligence, it’s a consumer, by the time the consumers of intelligence get the reports, the refinement of the reports has already been done by the three agencies that know the most about the collection effort. So there wouldn’t be any need, generally speaking, to unmask anyone. I suppose it could happen, theoretically, but there shouldn’t be any need, because the agencies that collected the intelligence and that know most about the collection efforts have already gone through the calculus of what needs to be revealed.
HH: And if it ever turns out that they need to charge an American for complicity in associating with Russia and acting with Russia, an indictment will be unsealed that will name that person and the particulars. That’s when their names come out. Andrew, help me out here. They’re going to call Susan Rice to the House Intel Committee. Whether she shows, I don’t know. I am trying to model for them how to do a basic deposition. And it seems to me you can help them out right now. We’ll type this up and put it up. They shouldn’t eat up their time with long speeches about condemning what happened. They need to ask her very simple questions, for example, when did you first request the unmasking of an individual? With whom did you share that request? With whom might that person have shared that request? Did you share that request with the President? How would you conduct a questioning of Susan Rice, Andrew, and maybe you’ll write this over the weekend so that our knuckleheads in Congress don’t screw this up when either she or Ben Rhodes or anyone who can be called is called?
AM: Well, I’m glad you asked that, because I have a column going up this morning that asks at the end five or six questions that can, I think, get us from the point of wondering do we have an innocent situation here where one or two times an unmasking was done for a plausible reason, or do we have a pattern of behavior that’s a massive abuse of power. And I think, Hugh, that what you would do is, the first thing that’s important for them is they have to get these documents before they speak to her. And you know, from her standpoint, that would probably be better, too.
HH: The alleged spreadsheets? You mean the alleged spreadsheets or the raw intelligence?
AM: I mean the alleged, I mean the alleged spreadsheets, but I also would be, they have records of every time somebody asks for an unmasking.
AM: So my question, my first questions is, is this a one off or two times? Look, I was a prosecutor who worked with FBI agents for a long time. During the course of that, I made the legal decisions. They made the investigative decisions. But there were lots of times that I missed something legally that they tipped me off to, and that they missed something investigatively that I tipped them off to. So it can happen. And as a result, if it was one or two times that she did it, and there was a plausible reason for it from an intelligence standpoint, and I think, you know, the Russian thing is very serious. I don’t think they hacked the election, but Russia is hostile to our interests. So looking into Russia, I wouldn’t blame them for that. But is this something that happened one or two times innocently? Or is it a pattern of behavior that somehow “incidentally” in quotes, involved the same exact people again and again, all of whom had connection with Trump? And the other thing you have to ask is were the Trump people subjected to a different set of standards with respect to minimization and unmasking than other Americans are, which…
HH: And we also have to ask questions, I want to know if you agree with this, about things not yet in evidence, because we’re focused on the Russia investigation, but she’s been the National Security Advisor for four years. Did you unmask in other situations? Is this a pattern and practice of the Obama White House? We will learn either that it is or that is isn’t, but we need to know exactly how they ran that. I want to play for you Richard Haass yesterday on Morning Joe, former head of the assistant secretary for policy at the State Department, president of the Council on Foreign Relations, deeply conversant with this, cut number 9:
JS: It would have to be extraordinary to unmask U.S. citizens’ names here.
RH: It would have to be, and as Mark, and you have to begin all the conversation with if the reports are true. But the whole idea of this is privacy. The whole idea is to protect American citizens from unlawful scrutiny, if you will, so I think these are big questions. And it also raises questions, I would say, what people on the NSC might be doing. The NSC has two jobs, the National Security Council. They’re there to coordinate foreign policy and national security, and you’re there to be an advisor to the president, a foreign policy counselor. Why people on the NSC, if this is all true, on both sides, are doing this kind of tactical work?
RH: This is not their job.
HH: So Andrew McCarthy, you’ve been making this point, but I want to know when they started making it their job. I want to go back to the beginning and find out, and especially, you know, the presence of Ben Rhodes, given what he told the New York Times Magazine, should set off every alarm bell in the city and in the country.
AM: Yeah, the question, Hugh, is for example, why did the NSC around the beginning of the Obama administration have, you know, a few dozen people, and now they have a staff of 400? Why do you need 400 people at the NSC? Why did they become so intrusive, and not just on this, but on many of the functions of the executive branch? And we’ll be discussing more of that. But the one thing I would add to what Haass said, which I agree with, is that you know, you have to remember that it’s not just the privacy of Americans they’re concerned with. They’re concerned with the preservation of the ability to do their own jobs. Part of the reason that these guys don’t violate the rules is they know that, for example, at the end of this year, these powers are coming up again for review.
HH: Oh, you know, we have to talk about that. Andrew, I’ve got to do a break. If you can, I’m going to ask you to stick around. Duane will pick up and see if you can stick around, because I think the Foreign Intelligence Surveillance Court is going to be very unhappy with the NSC when they find out about this. So we’ll get Andy after the break to continue this conversation. Don’t go anywhere, America.
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HH: And Andrew McCarthy, before we went to break, we were talking about the fallout from the Susan Rice abuse of power, if it turns out to have been as broad and as deep as I fear that it is. One of those consequences, which Director Comey referenced in his testimony, open testimony last week, is that the Foreign Intelligence Surveillance Court takes very seriously the idea of protecting American citizens from incidental surveillance. They’re going to have an interest in this, quite a deep interest, are they not?
AM: Yeah, they sure are, because what the civil liberties community has complained about most, and I say this with respect, because I’ve been on the other side of this argument, is that these powers not only potentially, but in actual circumstances, can be abused by the government to do exactly what we began talking about, Hugh, which is domestic spying. And you know, this is an area where the national security, where because of the sensitivity and the secretive nature of a lot of what you have to do, the government has to look people in the eye and say trust me in order to be allowed to do a lot of the things that we need it to do to protect our security. And if the government gets to a point where because of its performance it can’t credibly say trust me anymore, then what ends up happening is that we lose the powers. Congress will cut back, curtail these surveillance authorities which are necessary to the protection of the country, and endangers all of us. To me, that’s the biggest part of this scandal. How it all relates to Trump and Russia, I suppose that’s very interesting. But I’m a lot more concerned about where we’ll be by the end of the year.
HH: Now I understand it does have to go back to Congress, and there will be a debate about this. But how does the court patrol what it’s been given and whether or not its instructions with regards to protection of American identities and incidental collection are followed? I think the court has authority to summon the Department of Justice, along with the counterintelligence division of the FBI, to answer for their actions, does it not?
AM: Well, it can ask. But you know, as we, as the framers recognized, the authority of the court is based on the perception that its rulings are both, you know, legitimate, necessary and authoritative. But at the end of the day, they don’t have budget, and they don’t have enforcement power. And if the executive branch doesn’t pay them deference as far as their rulings and their demands are concerned, there’s not a lot the court can do about it except squawk. And it’s hard for the Foreign Intelligence Surveillance Court to do that, because its proceedings are all classified.
HH: A question for you, would Director Comey be aware of unmasking requests made to the NSA? And would Admiral Rogers be aware of unmasking requests made by Susan Rice to the FBI?
AM: I doubt they’d have been aware of them, Hugh, in real time. I’m pretty sure they were aware of them now.
HH: And do you think they would coordinate now a conversation about the pattern and practice of the Obama White House? And going forward, General McMaster needs to be informed by this as well. This is not a one administration issue. This just can’t go on, because we all, you and I are probably, if you’ve ever talked to a Russian or a foreigner, you and I are probably in this database.
HH: Every American who talks to a foreign is probably involved in this database somewhere.
AM: No, that’s exactly right, and remember how whipped up people got when it turned out their metadata, which by the way, was not attached to their identities, but just their activity, that the data about that was in a system, and that got people outraged. So the thought that our actual conversations are there is going to be explosive for people, and it’s going to be a big, rich vein for civil libertarians to say that the government shouldn’t be allowed to do this stuff. And if they can make that case with a bunch of abusive behavior, then you know, Director Comey and the rest of the intelligence community are going to have to present to the Congress a pretty compelling case that they’ve internally investigated what happened here, and they’ve taken real measures, not just nonsense, but actual meaningful measures to make sure something like this doesn’t happen again, if it happened. We’re not there, yet.
HH: Okay, last quick question. At the end of the administration, an executive order issued that made it possible for more people to see this material than previously had. What did you make of that? Is that a source of concern for you?
AM: I think it’s a three-part potential conspiracy. I think you have people at the top like Rice who were doing the unmasking. I think the executive order has the effect of pushing the raw information and the unmasked information out to a broad array of people in the intelligence community, which geometrically increases the likelihood of leaking. And then, according to Evelyn Farkas, you have former Obama and Clinton campaign officials who were pushing Congress to demand disclosures, which additionally increases the likelihood of leaking. And by the way, we had a lot of leaking.
HH: And we need to investigate every single one of those. Andrew McCarthy of National Review, thank you. We’ll look for your pieces over at NationalReview.com later today and through the weeks ahead, an experienced guy, a wise hand, an experienced prosecutor as we go through Ricegate. That’s what it will come to be known as, I’m pretty sure, as this goes forward.
End of interview.