Why shouldn't Trump sit down with Mueller? Do we even know what the crimes were? The main intent of the Mueller investigation was to figure out what Russia’s involvement was in our last election. Is Trump’s involvement just a sideline issue that’s been over-politicized? Although there may seem to be bias from select members of the FBI, are these criminal actions or violations of the bureau? Former Assistant US attorney and columnist for National Review, Andrew McCarthy joins Dan and Kristen McQueary to discuss.
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Proft: Good morning, Dan...and in for Amy this morning, Chicago Tribune Editorial Board Member Kristen McQueary, and Kristen, our next guest is Andy McCarthy, and I think he's become, really, THE definitive political legal commentator on all things related to all of the competing investigations going on, obviously he has a background as a former assistant US attorney in Manhattan, gives him the requisite knowledge to provide the really...perspicacious reviews that we should be getting but we don't get in many places, certainly not in most of these insufferable cable TV shows. He's got a couple of pieces and...by the way, if you read Andy McCarthy, you really should get CLE credits, if you're a lawyer. (McQueary laughs) Particularly if you're a lawyer that's a member of Congress. He's got a couple of recent pieces in...both about Mueller's investigation and whether Trump should agree to be interviewed by Mueller, as well as whether Rod Rosenstein, the Deputy Attorney General, is abiding his responsibility, his oversight responsibilities, in respect to Mueller. And of course we want to talk about "the memo" too. So without further adieu, we're pleased to be joined by the aforesaid Andy McCarthy, you can get all of his work at NationalReview.com. Andy, thanks for joining us again, appreciate it. McCarthy: Morning Dan, morning Kristen. I'm busy this morning looking up perspicacious. Proft: Well, I mean... McQueary: Andy, I bring my thesaurus to the show whenever I sub, it really helps out. Proft: It wasn't a bar exam question, Andy, so you don't really need to worry about it. So Andy, what I do at the beginning of a week is I look for your column, I read it, and then I pretend that your arguments are my arguments, for the purpose of discussing these topics. McQueary: He's not kidding, he actually does. Proft: So what I want...I want you to lay out your argument, that I've previously laid out, on Mueller, why Trump shouldn't sit down with Mueller...more than even that, why Trump shouldn't even be ASKED by Mueller for an interview. McCarthy: Yeah. well I think the structural question about how the government works, and how the Justice Department is supposed to work, is...while a prosecutor has the power to subpoena anybody into the Grand Jury, virtually for any reason, and that's because the Grand Jury has very broad, almost limitless, investigative authority, a Grand Jury is even allowed to investigate, to satisfy itself, that no crime happened, so it's...it's very expansive, so what brings some sensible limits to what prosecutors can do is the policies and the supervisory authority in the Executive branch. So, this is a hotly politicized thing, so let's just try to take Trump out of it for a second, let's say I read an article in the Chicago Tribune. And it indicated that the reporter had a bunch of sources that would be very interesting in terms of developing an investigation that I am running. So I think the easiest shortcut would be...let me just get one of my subpoenas, give it to an FBI agent, tell them to serve it to the reporter, so I can bring them into the Grand Jury and just ask them about who their sources are, and move forward with the investigation. I don't get to do that in the Justice Department! Even though the law says that the journalist doesn't have some kind of First Amendment protection of sources, even though sometimes journalists assert that but that privilege doesn't exist in the law, but there are Justice Department policies that say "You don't get to bring a journalist in unless you're investigating something that's very serious, and you've exhausted every other possibility of getting information." Which is why journalists almost never get..you know, notoriously...it's notorious when they get subpoenaed, because it happens so infrequently. Proft: Unless you're Holder, and then you just surveil 'em... McCarthy: But the point is that you have Justice Department policies that are in place to make sure that people don't abuse their awesome investigative powers. And with respect to presidents and other public officials, you don't get to just bring them in and interview them because you think it would be interesting. You have to have a good reason to do it, you have to be investigating a serious matter, the President has to be a suspect in it, and you have to have information of the nature of Nixon's tapes in Watergate, that indicate that the President is the only way that you are going to get at that information. If you don't have that, you're not supposed to be issuing a subpoena to bring the President of the United States in... Proft: So when... McCarty: Or interviewing him as a criminal suspect! Proft: So when Alan Dershowitz says Trump has two choices; he can agree to the interview and try to stake out the rules for the interview, or Mueller can just subpoena him...you're saying there's some options there too. Number one, there's the oversight option, and some restraint on Mueller's part, unless he can clear this threshold you're describing. Number two, of course, the President of course has the option to quash any subpoena that is issued for his testimony. McCarthy: Yeah, he can do that. Well, he can TRY to do that in a couple of ways. One way is he could exert Executive Privilege, but the reason that presidents don't want to do that is that is fraught with all sorts of damaging political implications because of the association with Watergate. But you're quite right, the President runs the Executive Branch. So, in essence...he could fire Mueller, he could order the investigation...the plug pulled on it, he could pardon everyone, which would effectively end the investigation. But the President doesn't want to do any of those things, for obvious reasons, and he shouldn't be put to the point of either doing it or not doing it, unless the Justice Department...not just MUELLER, but the JUSTICE DEPARTMENT...is satisfied that there's an investigation into a serious crime, that Trump is implicated in, and that this kind of an interview with the President is necessary to get relevant information. And if that exists, by the way, I would certainly not object to Trump being subpoenaed, I don't think anyone else should either. But the Justice Department hasn't been able...hasn't been required to show anything in this case that they should be required to show in order to have an investigation of this kind. Every single time in our history that we have had a Special Counsel, or a Special Prosecutor investigation involving a President, we've all always known what the crimes were, and the President has known what the crimes were that were under investigation. Here, we're completely in the dark. McQueary: So, given all that, and given all your questions about whether these requisite steps have been taken, how likely is it, you think, that he will sit for an interview and he'll be...well, how likely is it that you think he'll be asked to sit for an interview, and how likely is it that he'll sit? McCarthy: I think it's very likely that he'll be asked, because as long as Mueller's telling...as long as no one is telling Mueller he can't...any prosecutor would want to have more information! So if I were Mueller I'd say "What's the harm in asking?" You know, the question is whether he has to pass some hurdle in the Justice Department, before he can put that question...it doesn't sound like anybody's making him do that. So I do think the question will be asked, and as I understand it, Kristen, the President's legal team is trying to be cooperative. So I Imagine that rather than just telling Mueller no, they'll try to negotiate something like written questions, that the President can provide written answers to, rather than a session in...a session talking to Mueller's investigators or...I don't see the President going into the Grand Jury. Proft: And this is the area where you are critical of Deputy Attorney General Rod Rosenstein, with respect to providing that oversight you described on Mueller. McCarthy: Yeah, well, my criticism of Deputy Attorney General Rosenstein in this has been from the beginning. And by the way, from what I understand, Rosenstein's a very good guy, a good prosecutor, it's not...I don't take any joy in saying this. But, you know, there are regulations that apply when you appoint a Special Counsel. And what the regulations say is you're supposed to articulate the crime that has caused the Justice Department to recuse itself and required the appointment of a Special Counsel. And that's not just an idle exercise, as we all know, these Special Counsel Investigations tend to go on for years, and they careen from what they were originally about to some other crime way down the road that is not even contemplated at the time the guy is appointed. So the idea of articulating the idea of what crime they're supposed to be looking at is that it circumscribes the jurisdiction of the Special Counsel, precisely so it doesn't roll out of control. And yet that was never done here. McQueary: I want to get your response to something that...we had Jonah Goldberg on earlier, and he said that these are separate lanes. You have the Mueller Investigation, and then you have this effort with the memos and everything else to try and discredit Justice and discredit the FBI, and that it's dishonorable, of Republicans in particular, to be conflating these issues, and interfering, and crossing lanes, that Mueller is very capable of handling this and that it's a separate issue than what's going on at FBI. What's your take on that? McCarthy: Well, I've written something similar to what Jonah is saying here. But, I have a...I have a somewhat different take on it than he does. I think, I mean, to the extent that people say this Nunes memo, and this inquiry into how the FBI carried out its investigative authorities under FISA during the 2016 campaign, is a separate issue from the Mueller investigation, which started months later. And Mueller's remit is basically to investigate what happened with Russia in connection to the 2016 election, that is how did Russia try to threaten our electoral system? The Trump aspect...the Trump campaign aspect...of it is a sideline in a greater investigation, even though the Trump aspect of it obviously has gotten the most attention. So it is true that they're separate. On the other hand, we have to acknowledge that a lot of attention has, rightly I think, has been paid to the Steel Dossier, which is this unverified screed of opposition research that contains a lot of allegations that are pretty sensational against Trump, sourced to anonymous Russians, that was never apparently corroborated. And former FBI Director Comey testified to Congress in June of 2017 that that document was salacious and unverified. And if it was unverified in June of 2017, it was certainly unverified in September or October of 2016, when the FBI and the Justice Department evidently used it as part of the application to get surveillance authority on some people who were associated with the Trump campaign. Now I think that's worth covering, because if it turns out that the whole Trump-Russian collusion angle, that a great part of it in any event, was the result of this dossier, that certainly does call into question the narrative that ultimately resulted in Mueller's investigation. It does not, however, invalidate anything that Mueller has done, and anything he will do, because there's still the very important issue of what did Russia try to do to our elections. And Mueller is the guy who's been picked to get to the bottom of that. Proft: And don't we have to get to the bottom of this very important other issue, which is...did the previous administration weaponize law enforcement, the intelligence community, for political purposes against political opponents? The departure of Andy McCabe from FBI calls that into question again, including stories that are suggesting that McCabe delayed the examination of the Clinton emails, of classified information found on the Weiner laptop, and advised Comey against making any kind of public statement on the re-examination as the election neared, and just all of the political...well frankly, the politicization and the conflicts of interest that we now know existed, both at Justice and at the FBI, and maybe at other agencies, when you get from their investigations to...to...to overt steps like unmasking, which we know is a criminal act, that has kind of been lost in the shuffle. McCarthy: Well, I think all those things absolutely have to be investigated. We do need to find out how immersed the FBI was in the politics of the 2016 election. We have to sort out how much of that was the FBI's fault, and how much of it was the happenstance of they just happened to have been investigating somebody who happened to be nominated for President. So you have to, you know...some of the stuff landed in the FBI's lap through no fault of the FBI’s, right? The Democrats decided to nominate Mrs. Clinton, the Republicans decided to nominate Trump. They both came to the table with whatever baggage they had and the FBI had to deal with the fallout of that. The question is did they deal with it within the bounds of their normal policies and regulations, or didn't they? So of course that needs to be investigated. I'm not sure the masking...the unmasking...to the extent it happened, has a criminal aspect to it. Proft: What about Flynn? McCarthy: It does happen, it...I'm sorry? Proft: What about Flynn, with respect to Flynn? McCarthy: Well there's a difference between the unmasking, and the leaking of classified information. If that information was leaked to the media, that's classified information that was leaked, that's a crime. Unmasking is...you know...it may be a crime but...you know...it's never gonna be a crime, but it may be a violation of the minimization instructions that attend to these FISA intelligence collections, or not. If the person who asks for the unmasking...which is just revealing the identity of someone who has been collected in foreign intelligence collection...and the revealing is only in intelligence reporting, it's not revealing it publicly, it's still classified. If that was done in violation of minimization instructions, that's simply a violation, that's not a crime. And it's hard to prove that it's even a violation, because the laws are very loose on this. The minimization instructions say that if the intelligence person thinks that in order to exploit the value of the intelligence collection, you need to know the identity, then they're allowed to unmask. And the big problem here is not so much the unmasking as was it used in an overall arrangement that was designed to leak the information to the media? That's the big problem. Proft: He is Andy McCarthy, former US District Attorney in Manhattan, contributing editor on National Review, always check out his stuff on these topics. Andy McCarthy, thanks so much for joining us, appreciate it. McCarthy: Thanks, have a great day!