I was joined by Andrew C. McCarthy this morning, to provide a primer of the investigations underway right now:
HH: There is a great deal of confusion in Washington, D.C. about what the Russia scandal means. There are actually two Russia scandals. One involves Russia’s attack on our election, which I don’t dispute, I haven’t disputed from the beginning through Wikileaks, by hacking Podesta’s email, by hacking the DNC, by playing in the election through Fancy Bear. It’s real. It’s a problem. Mueller is on it. There’s a second Russia scandal, though. What did our law enforcement agencies do right or wrong during this election? Did they put their finger on the scale? And to that issue, I’ve asked Andrew C. McCarthy to join me to provide a primer and an overview. Andy is a longtime federal prosecutor. He’s retired now. But let’s begin, Andrew, first of all, thanks for joining me.
AM: Hugh, my pleasure. How are you?
HH: I am terrific. You are now the senior fellow at the National Review Institute, but for the benefit of our Steelers fans out there, how long were you a prosecutor for?
AM: Almost 20 years.
HH: And what kind of prosecutions did you do?
AM: I think we ran the gamut. I got a very good run. I started out doing basically mafia and big drug cartel cases, and I thought that was going to be the biggest thing. I happened to be lucky enough to be there when Rudy Giuliani in and actually learned, taught people to use the RICO Act, so we had cases on all the major mafia families. And I hung around long enough until it switched to national security when the World Trade Center was bombed. So…
HH: The first World Trade Center, the first bombing.
AM: That’s right, in ’93. So I had a, I had sort of two big waves of the way prosecutions changed in modern times, at the least focus on. So I was very lucky.
HH: Now you are familiar as well with our counterintelligence operations and the times in which intelligence gathering crosses over with criminal prosecution. Maybe a little opening on that so that people understand the terms? They’re not the same thing.
AM: No, they’re not, and this is interesting, Hugh. I was a prosecutor for seven or eight years before it really dawned on me in a major way that the FBI has a night job. It’s our domestic security service. There’s a whole side of the FBI’s house that people are not familiar with, because most of what the FBI does overtly in our country is it’s the premiere law enforcement agency in America. But because the CIA, the NSA, most of the intelligence agencies by statute and by their charters cannot operate or may not operate inside the United States, it’s the Bureau which is of course regulated by federal law and the Constitution, which conducts security operations inside the United States, including surveillance on people who are suspected to be furthering the agendas of foreign powers, which can be either foreign governments or a terrorist organization.
HH: So the Bureau has an enormous set of powers regulated primarily by their charter, by the Department of Justice division of national security, the deputy attorney general and the attorney general, and of course the Foreign Intelligence Surveillance Court. There is underway a set of investigations in both the House and the Senate, and within the Department of Justice, and in the inspector general at the FBI, I believe at FBI inspector general, as to the conduct of the Bureau during 2016, maybe during 2015 as well. Would you summarize for us what is the major focus of that set of investigations?
AM: Okay, I think, Hugh, that the IG investigation, the inspector general is Michael Horowitz, who is another former Southern District of New York prosecutor like me, like Jim Comey, like a lot of people, Bruce Ohr, many people who are involved in this drama. But that’s a Justice Department inspector general. And what they are essentially looking at is the operations conducted by the FBI, primarily the FBI, but also to some extent, because it’s unavoidable, the Justice Department as well in connection with the investigations that were impacted and that had impact on the 2016 election. I think the inspector general’s focus is mainly the Hillary Clinton emails investigation, and what the Congressional committees are looking at is both that, to some extent, and also the investigations that come under the umbrella that we’ve come to know as the Trump-Russia investigations. And I think we’ll get a full, by all those things, even though it’ll be a little disjointed, we’ll get a full picture of it. But I think the real issue for people to focus in on is, as you said before, did our law enforcement and intelligence agencies put their finger on the scale in connection with the election? They were certainly enmeshed in the election through forces of, that were beyond their control. And the Democrats chose to nominate Mrs. Clinton, who was on, who was under investigation. The Republicans nominated Donald Trump, who had people in his campaign who had dealings with the Russians at some intriguing levels. So there was probably nothing the FBI could have done about the fact that it was thrust into the election. But the question is whether they handled these two different investigations, the one focused on Clinton, the one focused on Trump? Did they handle them in an even-handed way? And objectively, I don’t think anyone can say that they did. And I guess the second big question is did they allow their political predisposition, to the extent they had them, to control their professional responsibilities? And I think that’s what we’re really looking into in the Congressional investigations.
HH: Now many in Washington on the conservative side are, have already reached the conclusion that the FBI, aided and abetted perhaps by the CIA and Department of Justice, averted their eyes and did not press Mrs. Clinton on her server while they were in fact retailing the Steele dossier, which they ought not to have done. They should not have imputed credibility, as you’ve made an argument, so that they’ve double sinned. They not only went light on Clinton, they went hard on Trump. I am not there, yet. I have to wait and see. There’s a lot of stuff that has to come out. I’m very bothered by the text messages between Strzok and Page. I’m very bothered by James Comey taking notes on the President after having a conversation with him. I don’t know why they gave him the dossier. It’s a bizarre set of circumstances. What do you think at this point, Andrew, reserving the right to correct and extend the record, you’ll be back a lot if this is going where I think it’s going, what do you think has happened here?
AM: I think that they went light on Clinton, and they went heavier than they ought to have on Trump, although I think with respect to Trump, there’s no indication to me, yet, that they dove in with both feet for no reason. I don’t think the Trump investigation is a fabricated investigation. I think they overdid it. I don’t think they had a basis to do a surveillance on Carter Page. I don’t think there should have been a criminal investigation of Michael Flynn. So I think there were, what’s inexplicable with respect to the two investigation is not that there was not a basis to be curious about what was going on with respect to Trump and Russia. What’s inexplicable is how they bent over backwards not to make the case against Mrs. Clinton and how they seemed to have cut corners in order to try and make a case against Trump.
HH: Now in light of this, when you look at Director Comey’s conduct, is he the most unaware, self-unaware person in America? Because his tweets, nothing adds up. I can’t figure out James Comey at all other than he really thinks he’s Eliot Ness, and his judgment is 100% perfect. I can’t imagine he was intentionally throwing the Clinton investigation.
AM: Well, let me preface this by saying I’ve known Jim Comey for 30 years. I like and admire him. And I’ve always thought he was a patriot. I have not agreed with the way that these investigations have been handled. And it hurts me to have to say that, because he’s somebody who I know and like. But that said, and maybe I’ve, for that reason and I’m going the extra mile to try to see things his way, although I think I’ve been pretty critical of him, I don’t think the FBI ever could have brought charges against Mrs. Clinton. My belief is that the President decided that Mrs. Clinton was not going to be charged, that that was something that it was either understood at the Justice Department without having to be said, or it was effectively communicated by President Obama when he made his public remarks in April of 2016 saying that she didn’t, she shouldn’t be charged, and she didn’t intend to harm national security. And it seems to me that everything else that happened after that was just the details of how they brought about a decision that had already been made. But I think it’s important that people understand no matter whether you agree or disagree with how Jim Comey handled the investigation, and I disagree pretty strenuously, there is no way Comey or anyone at the FBI could have charged Mrs. Clinton, because that’s not the FBI’s job. That was up to the Justice Department.
HH: Yeah, and when we come back with Andy McCarthy, we’re going to talk about why the Grassley-Graham memo is a real eye-opener, and a door opener to the next phase in what’s going to become known as the 2016 election scandal, I think. Stay tuned, America.
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HH: Real Clear Politics has opened a new page, Andy, called Real Clear Investigations. And the first line on it this morning is Exclusive: CIA ex-Director Brennan’s Perjury Peril, then verbatim, Brennan’s House Intelligence Committee. Then how CIA Director Brennan targeted James Comey by Lee Smith, a very talented writer at The Tablet, and then your piece, the Grassley-Graham Memo Is Shocking. Let’s begin there. Why is that memo shocking? And what does it tell us about the investigation path ahead?
AM: Well, it’s shocking, Hugh, because it shows that they did, the FBI and the Justice Department, did use an unverified, what’s known as the Steele dossier, this set of unverified hearsay claims about Trump that are, you know, completely uncorroborated, and they did not reveal to the FISA Court the fact that this screed that they put in front of the court was actually a Clinton campaign opposition research project. I’ve tried to stress that the real problem with the Steele dossier is not so much Steele’s credibility, although that’s a big problem, it’s the credibility of his sources who are anonymous Russians, several steps in terms of hearsay removed from the things that they claim to have seen and heard, which were the probable cause factual basis that the Court issued, the FISA Court issued the surveillance warrant on. Generally speaking, a court does not care what the credibility of the investigating agent who amasses the informant information is. What they care about is, is there a basis in the warrant application to believe the informants who bring you the factual information? And I simply do not see it in the dossier. And for that reason, then you have to look at, well, why did they bring that and what is the motivation of the people who amassed this information? And if log on top of that the failure to bring to the Court’s attention that this was a campaign product is just, it’s inexplicable to me.
HH: Now I have posted at Hughhewitt.com the conclusions of a 20 year veteran in the Bureau who does a lot of FISA work about the Carter Page warrant. And this agent finds it to be wholly unpersuasive that it ought to have issued and that perhaps it did issue for nefarious reasons, that is to allow what happened, which is Bannon got picked up on the Carter Page. Reince Priebus, I asked on Saturday, he doesn’t think he did, because he didn’t know Page and doesn’t know him and didn’t know Papadopoulos. But they got their hooks in. So the most nefarious reading, I’m not persuade of this, yet, but I know what the most nefarious reading is, is that Team Obama, post-shocking election, orchestrated FISA warrants to be renewed in order to keep, they got the one on Page before the election, but to keep them going to get as much info on Trump as possible to delegitimize him. Do you think there’s anything there, Andrew McCarthy?
AM: I do, Hugh, and I think there’s one other thing about that that really ought to be stressed, and that is once you’re up on the guy’s phone or his communication devices, his, you know, emails, text accounts and the like, you not only get the forward-going communications, you get whatever stored communications are on his system.
HH: Oh, I did not know that.
AM: When they got up…
HH: Oh, my gosh.
AM: Yeah, so what, so when they get up on the guy’s phone in the first warrant, it’s not just that you get Carter Page going forward. You get, and what I think they wanted, which was they were hoping to get a motherlode of communications involving Page and Trump campaign people. And I think what has yet to emerge from all this is that that was what they were, that was the goal. And I think it turned out to be a dry hole.
HH: Now let me conclude by asking you, there’s an attempt to delegitimize Devin Nunes. But Speaker Ryan rejected the Rod Rosenstein-Christopher Wray visit where they wanted to keep this memo secret. It came out, and then it was corroborated by the Grassley-Graham memo.
HH: What is, is DOJ and FBI fighting for their general credibility? Or are they fighting against Nunes? What is going on here, Andy McCarthy?
AM: Yeah, Hugh, it’s hard to tell, because with these things, it’s always, there’s always a lot we don’t know. And I’ve always been of the mind that since there was so little with respect to probable cause on Page, they must have put a lot into the warrant about their theory that Trump could be compromised by the Russians. And we don’t know what Russian intelligence they put in to try to support that. And I assume that that’s the big fight that we’re having about, methods and sources.
HH: So it is possible that they have a legitimate point, that it is possible that they, that this is not a scandal.
AM: Yes, which is why I keep stressing to people we ought to, we can’t too far out in front of what we know, because there’s too much we don’t know.
HH: Okay, and to sum up, Andy, in one minute or less, where do you think this is going to go over the next three to six months? Is it going to become a Watergate-style, this is the second Russia, not the Mueller investigation. It will go wherever it goes. But do you think there’s going to be a second metastasizing investigation into this whole branch of the scandal?
AM: I think there will be a metastasizing investigation, and I think the next big thing is do we get the underlying documents, because you know, right now, we’re kind of gradually peeling it back, and we have these dueling memos. And I think, I agree with the Wall Street Journal’s editorial today. We’ve got to get it all out there. Now they should be able to redact whatever needs to be redacted in the way of national security secrets and sources of intelligence, but let’s get the information out there for once and for all so that we can see what they did.
HH: And if what they did was bad, what, do you see prosecutions coming out of this?
AM: I think it depends on what they did. And I never like to speculate that people violated the law until we have a good look at that.
HH: Good, responsible approach. Andrew McCarthy, keep coming back. Keep writing those pieces. Do not miss anything Andy writes, and you won’t if you follow him on Twitter, @AndrewCMcCarthy. Thank you, Andrew.
End of interview.