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My Guest

Andrew C. McCarthy (@AndrewCMcCarthy) is senior fellow at the National Review Institute, contributing editor of National Review and author most recently of essential books on the threat of Islamic supremacism including Willful Blindness: A Memoir of the Jihad, The Grand Jihad: How Islam and the Left Sabotage America and Spring Fever: The Illusion of Islamic Democracy.

In Part II of my in-depth interview with Andy, we discussed Russiagate, the pervasive unethical and at times lawless behavior of law enforcement and the intelligence community with respect to Donald Trump and Russia versus Hillary Clinton and her e-mail server, the apparently limitless mandate of Robert Mueller’s special counsel, obstruction of justice and much more.

If you missed Part I of my conversation with Andy on his experience prosecuting the jihadist mastermind of the first World Trade Center attack and what it taught him about the Islamic supremacist threat America faces, the primacy of religion and why Islamic supremacists choose jihadist savagery over assimilation, willful blindness in American national security and foreign policy, folly in American foreign affairs from Syria to Libya, and the imperative to collapse the Khomeinist Iranian regime, be sure to catch up here.

What We Discussed

  • Russia’s historical attempts to “interfere” with U.S. elections, and its imperceptible impact on the 2016 U.S. presidential vote
  • McCarthy’s dissection of the double standard in the DOJ/FBI’s handling of its investigation of Hillary Clinton versus that of Donald Trump, and the unwillingness to bring Clinton to justice over Clinton Foundation impropriety if not worse and destruction of State Department emails
  • Former FBI Director James Comey’s monumental error in testimony on the counter-intelligence investigation implicating the Trump campaign that ultimately served as the basis for Robert Mueller’s special counsel
  • Mueller’s limitless special counsel mandate and brazen tactics against Paul Manafort
  • Politicization of law enforcement and the intelligence apparatus, and its detrimental long-term impact on American national security
  • How to root out corruption in the FBI, CIA and DOJ, and the suspicious if not lawless acts of Obama DNI Chief James Clapper and CIA Director John Brennan
  • The disingenuous nature of the Intelligence Community Assessment on Russian meddling in the 2016 election
  • The double standard in the treatment of Paul Manafort versus Hillary Clinton and her email server
  • McCarthy’s obliteration of the obstruction of justice theory
  • President Obama’s involvement in Russiagate

McCarthy’s Recommended Reads

Other References

Thanks for Listening!

Check out other episodes at benweingarten.com/bigideas.

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Full Transcript

The following transcript has been lightly edited for clarity.

Ben Weingarten: You mentioned Russia and how it views the world and seeks to use its influence to fill vacuums so long as it can essentially hurt its broader enemies — namely the West — and further its own interests. And it really does project its power to a far a greater degree than it actually has. If you were to look at it on paper, I’m sure you’ve sort of had the same reaction that I’ve had over the last couple years, where today, Russia is considered the greatest threat that the Left has ever seen in the history of mankind. And if the Left had had that view for, I don’t know, say the last 60 or 70 years, the world might have been a lot more peaceful place a lot faster.

Andrew C. McCarthy: We’d have a lot more of our own uranium.

Ben Weingarten: And that’s just in the last couple of years. All that said, the broader narrative, I think, around what’s been deemed “Russiagate,” is this idea that there is some form of collusion, which is not a crime, it’s sort of loosely defined and abstract, but there’s some untoward relationship. We’ve seen in over a year of this that there is no overwhelming compelling evidence of it, and that’s with basically the entire political system wanting to find something, the entire Clinton team wanting to take down a president, obviously before he ever won that election… And the institutions that are involved with this involve folks that you’ve worked with, your friends, institutions that you revere. And we can see in your writing that you struggle to grapple with the fact that you don’t like the direction these institutions in many cases have gone. It appears that they are politicized and they want to take down someone that they view as a threat to in effect their livelihood, their worldview etcetera… What is your take on the idea that the real story here is the fact that institutions are protecting themselves against someone that they dislike and that they are willing to engage in both unethical and in many cases, lawless acts in order to try to stymie a President and ultimately take him down?

Andrew C. McCarthy: Well, I think I’m not against the notion that if you have a president who’s guilty of a crime and who corrupts his office, violates his trust, undermines the system, that that president should be investigated and impeached if the violations are serious enough. And that’s why I thought, even though I was skeptical of the Russia interference in the election…Well, I should back up when I say I’m skeptical. I think Russia has been interfering in American politics since 1917. And I think that this was never an issue up until recently because the notoriously, if not talked about very much instances of it are Democrats coordinating with Russia, or asking Russia for help or otherwise bring Russia over to their side in connection with the elections against Republicans.

Ben Weingarten: The other Ted Kennedy scandal.

Andrew C. McCarthy: I’m not saying I was skeptical of Russia interfering our election. What I was skeptical about was whether the degree of this time around of it was so much greater than prior instances of it that we should take notice of that fact. Although I was…I’m perfectly willing to believe that modern ways of projecting media influence are more worrisome than some of what’s gone on in the past. So I was open-minded about that. But I didn’t think there was any chance that Russia had affected the election, and I wasn’t alone in saying that Barack Obama said it, Hillary Clinton gasped and said…something along the lines of “disgraceful” or “shocking” when Trump in one of the last debates — it may have been the very last debate — suggested that he might not instantly accept the outcome of the election. And she was horrified that anybody could possibly suggest that an election could be rigged. The whole thing to me was a lot of theater. And they decided that the election was rigged ’cause she lost.

And the problem with that is two-fold: Number one, Russia always tries to interfere in our elections. And number two, Trump won by such a statistical improbability, basically 70-80,000 votes in five different counties in the United States switch out of, what is it, 160-something, million votes cast…And we’re not talking about a populist revolution. We’re talking about a pillar of the political establishment winning election comfortably, and winning by more than three million votes, etc.

So the thing was, Russia always interferes, and Trump’s victory was so statistically unlikely and so razor-thin that it became impossible to say that any one thing couldn’t have changed the result of the election. I thought the one thing that maybe could have changed the result of the election was if Mrs. Clinton had gone out and campaigned in some of the battleground states that might have had some effect…

Ben Weingarten: Or maybe not illegally used an email server.

Andrew C. McCarthy: Well, they’re the Clintons right? You can’t look for perfection. I just thought that once you decided to leap on this narrative…because of those two factors that can’t be argued — the razor-thin nature and the fact that Russia interferes — it would be impossible to say that this couldn’t have had any effect, and therefore the verve with which they would go about trying to establish that there was something in the way of cui bono because the way they portray it, “The Russians badly wanted Trump to win and were fearful of Hillary… ” the whole fairy tale that they go about…And it seemed to me, and I think this has been borne out in Mueller’s charging instruments like that indictment against the 13 Russians and the three companies, that Russia did what it always does, which is it’s trying to sow instability and discord. And I think that to the extent they supported Trump, it’s not that they wanted him to win, it’s that they thought he was gonna lose because their strategy for sowing discord is to find the minorities or the most rambunctious and try to stir them up, which is what causes the domestic discord. You don’t have to whip up the majority of the people. They’re already the majority. I think Russia did what it always does.

Ben Weingarten: Very cheaply, incidentally. They spent almost nothing on this relative to an election.

Andrew C. McCarthy: It’s a whistle in the wind. It’s indetectable [sic]. I don’t think what they did was that unusually different from what they always do, but they did it in a way that could be played as benefiting the guy who beat the Democrats, so it becomes a scandal.

Whereas, the reason that…People on the Right talk about things like Uranium One is not that Uranium One is the biggest scandal of all time. I hear people, it makes me cringe when they overstate the case about this stuff. They say “They undermine our national security by giving them all our uranium.” Well, no. We gave them our uranium rights. We shouldn’t have given them to ’em. But Uranium One’s a corruption case. It’s not a national security case. And the reason it’s of interest, it’s a screaming, blatant, Russia-based scandal, that the media is utterly uninterested in while they run around trying to prove this collusion thing for which there doesn’t appear to be any serious evidence.

And to the extent there is evidence, the thing that bothers me about that is that it’s the kind of thing like this, seemingly, not very clever fellow, Don Trump, Junior, having this meeting with Veselnitskaya, the Russian lawyer, to get what they hope would be opposition research. So here you’ve got a bunch of Democrats who on Monday, Wednesday and Friday are hysterical about the idea that Trump would take opposition research from the Russians about Hillary. And then on Tuesday, Thursday and Saturday, they’re doing the Steele Dossier, which is like reaching out to Russian sources to get opposition research on Trump.

So what really bothers me about this stuff is the idea that whatever little Trump did in the way of coordination with Russia is somehow of a character different from anything Hillary either did do, or would have done, had she the opportunity, with nobody seeming to have much curiosity about all the foreign money that went into the Clinton Foundation, and the fact that the Clinton Foundation appears to be a scam to get around the campaign finance laws and bribe, Mrs. Clinton, who they thought was going to be president; and the fact that the email scandal for all the talk, talk, talk about classified information — the scandal of the email scandal is the reason she did it. Nobody has ever thought…nobody credible has ever thought that Mrs. Clinton tried to harm national security. But what nobody seems to be terribly interested in is the degree to which the State Department was put in the service of the Clinton Foundation. And I remain convinced that the reason that — her motive in having this non-government “homebrew” communication system was precisely to conceal the way that the Clinton Foundation and her tenure as the head of the State Department were married up.

So to me, that, coupled with all the destroyed government records — which by the way, is a felony — and I don’t understand the intent defense to that one for the life of me. It seems to me that seems pretty serious that the State Department was run that way, and that thousands, tens of thousands of government records were… Destroyed. And it seems to me pretty cynical for Mrs. Clinton to say that they were about yoga routines and Chelsea’s wedding. Even coming from the Clintons, that’s pretty brazen to look you in the eye and say that was what that was about, especially now given circumstances where even Comey tells us that thousands of these emails were State Department emails.

So I don’t know. It just seems to me that, no…I know this is way beyond what you asked me, but it seems to that no objective person…and I feel like I’m reasonably objective for two reasons: Number one, I was never a big Trump guy. I went, actually, I’m in the middle of trying to write a book now, and I’ve gone back on some of the things I’ve been writing since 2015 and some of it about, with respect to…I was a Cruz guy. I’m a conservative. Trump is not a conservative. He’s sort of transactional. He’s conservative ’cause that was the way that way the wind was blown. But if it blows a different way, he won’t be tomorrow…That’s who he is. I think even he would say that if he was honest about it. But I’m not looking to make an argument about…What I’m saying is, I think I can be objective about this. I’m not a big Trump guy. In fact, I could have worked in the administration. I didn’t. And secondly, I have never shied away from the fact that I have very strong political opinions. But I always think that on law and order stuff, and on legal stuff, I’m clinical. I’m not ideological.

And I look at this and I just think it’s… No objective person could look at the way justice was dispensed in the Clinton investigation, and look at the way the Trump Russia counter-intelligence investigation has been run — including the fact that you know it’s going on, because a counter-intelligence investigation precisely because the subject of a counter-intelligence investigation is a foreign power — it’s supposed to be classified. You’re not supposed to know about it. So the way they bent over backwards not to make the case on Hillary, and the way they’ve scorched the Earth to find anything they could find on Trump, and they have violated every norm that we have about investigations, including announcing the existence of a counter-intelligence investigation…And I love Jim Comey, but he gets up in congress, March 20th of 2017, and announces, not only announces the existence of a counter-intelligence investigation, but floats out that, “Oh, and we’re also looking into whether they coordinated with the Trump campaign,” under circumstances where he’s been telling Trump for three months — and I don’t think in a particularly credible way — he’s been telling Trump for three months he’s not a subject to the investigation.

Now, to my mind, that’s nonsense. He was a subject of investigation. But that’s neither here nor there. If he told the president, “You’re not a subject,” or “You’re not under suspicion,” or however he articulated it, “But we can’t say that publicly,” I’d be with him on that. Except that you can’t say publicly other things that would suggest to people that…You either talk or you don’t talk, and if you’re gonna talk — you shouldn’t talk, we have good rules for why you don’t talk — but then you have to tell the whole story. So if he got up on March 20th and said, “We’re also looking at any coordination between Russian interference in the election and the Trump campaign, but be mindful of the fact that President Trump is not suspected in that, as I’ve told him a number of times, he is not a suspect in our investigation, but we’re still looking at what other people in the campaign did,” if he just said that — which is what he had been telling Trump — then a lot of what we’re dealing with, we would not be dealing with, and he’d still be FBI director.

Ben Weingarten: Given that’s the case — and you talk about the evisceration of norms, and the scorched Earth [Mueller special counsel] policy — and we can go through your columns… You’ve written about the litany of issues from the fact that it was a counter-intelligence investigation, not a criminal investigation; that the order itself governing the special counsel was completely vague, and seemingly limitless, and also subject to modification down the road with a letter from [Deputy Attorney General] Rosenstein; and we can talk about the fact that the investigators themselves are being investigated right now in many cases; and the layers of conflict of interest…Given that’s the case, and you see the way that people can get taken down who are on the wrong side of a particular issue, first of all, what is it that at core is animating those people that are scorching the Earth, and then, is there still a semblance of justice? Because this feels like a Beria-like kind of system, where, “We have the man and we just need to find the crime to stick on him.” That to me is the most chilling and frightening thing about all of this. Take all the particulars away from it. The fact that if you’re on the wrong side, they will get you and they’ll find a way, even if there’s nothing there — that is really chilling.

Andrew C. McCarthy: Yeah. I think it’s an important American tradition — and it’s a more important one today when we have a plethora of law than it was a century, a century-and-a-half ago, when the notion of the Justice Department was novel and the job of the Justice Department is much more modest…And it is today, when you have this unbelievable, extensive spate of law creation, you have to go by the old norm that you get a crime and then you assign a prosecutor. That’s how we do it with criminals. You don’t assign a prosecutor to go off and try to find a crime with virtually no parameters. And that is really what Deputy Attorney General Rosenstein did. And when he appointed Mueller…We now know that about 10 weeks after the appointment on August 2nd, he gave him this memo that — we still don’t know what’s in the memo, I mean four-fifths of it is redacted out — which purported to give him some guidelines and parameters of the investigation. I’m convinced he did that only because number one, a number of commentators — I don’t think I’m the only one deeply critical of the way that his appointment of Mueller did not comply with the Justice Department guidelines for special counsels…But I don’t think it’s…He’s not reacting to Andy. I don’t think that at all.

What I think probably more pushed them was, just a couple of days before he puts this memo out, they do this search warrant on Manafort’s residence — Paul Manafort, the former [Trump] campaign chairman for four months — they hit his residence with a “no-knock” warrant, where they go in before dawn. And he was in the middle of cooperating with two Congressional committees, and they ransack his place, and get his wife out of bed with guns drawn and all that stuff. I mean, really aggressive stuff. This is the kind of stuff you don’t typically see in white collar cases, and the kind of stuff you do when you’re trying to send a message. When you’re a prosecutor and you’re trying to send a message that way, you probably shouldn’t be trying to send the message. But I think the reason Rosenstein did that is it was clear by early August, certainly before early August, that they were gliding toward an indictment of Manafort and [Rick] Gates. And they had some reason to be concerned that if…There were questions about Mueller’s jurisdictional authority to be doing a criminal case — because if you look at the case that they indict, it’s got nothing to do with collusion with Russia — so that’s why he did that.

But in this case, you do really have an unguided missile. And again, I keep going back to the thing we started with. I don’t think anybody should have a problem — the presidency is an awesomely powerful job. And somebody who abuses powers of the presidency should be subject to impeachment. And if there have been serious crimes that you have a president implicated in, he should be investigated. And if you can get evidence of it, I wouldn’t care less. If you could prove it in court, he should be impeached and out. But the presidency is also the most important job in the government in terms of how we are governed and how our government functions. While I think nobody should hesitate to investigate a president who deserves to be investigated, there’s a cost to the way the United States is governed when a president is investigated, which means we should only do it if there’s good evidence for it.

So to my mind, you need to have a serious crime. You need to have the president unquestionably implicated in it. And then you go ahead and you do what you have to do. But if you don’t have those two things, then leave the president alone because we shouldn’t be re-litigating an election that way. Everybody knew what Trump’s flaws were. Everybody knew that he said reprehensible things about Putin. That was not a mystery to anyone. The public elected him. People say “He’s not my idea of the ideal Republican.” Well, I don’t know, somebody cleverer…than I am had said or had noticed that Abe Lincoln and Winston Churchill were not on the ballot this time around. The character flaw issue that we had was a wash because of the character of both candidates. And this is a two-party system. One of them was gonna win.

So we had an election. They elected Trump. He won fair and square. So if you wanna take them on and you wanna get them out of office, do it the old-fashioned way. If he hasn’t done anything impeachable, fight him on the issues. And then we go to the ballot box again in November, we’ll see how he makes out in the midterms, and then he’s up for re-election in 2020. That’s the way in this system we’re supposed to deal with a political difference.

And what I think they’ve done is they’ve politicized the law enforcement and intelligence apparatus of the government, first to try to get Mrs. Clinton elected — or at least to clear any barriers that she had to her election — and when she didn’t win, they’ve used it to re-litigate the election ever since. And I just think it’s wrong, and it does great damage. It drives me crazy to hear law enforcement and intelligence officials talk about the fact that a congressional committee by looking at this is damaging important institutions like the FBI. No, no, no. What’s damaging important institutions is the abusive behavior of the government officials in them who violate norms, who leak to the press and who have tried to re-litigate an election. That’s what’s bringing these institutions into discredit.

But where I agree with my old friends is that these institutions are very, very important. They’re critical to the rule of law, and the rule of law is critical to a prosperous, properly functioning democracy. So putting them into disrepute is really playing with fire, particularly on the national security aspect of things because National security — I learned this in a way by working on national security in the legal context, I learned this in a way that I never appreciated it before — which is, there’s a lot that goes on in national security on the intelligence side in terms of what we can do and who we rely on for information that has to remain secret. And what that means is…a lot of national security is about the intelligence community looking the American people in the eye and saying, “You can trust us.” And if they feel that they can’t trust us anymore, if America, if the American people come to think that their officials in these important law enforcement and intelligence institutions are not trustworthy, they are not gonna give them the license to do the things that are necessary to do to preserve law and order, and to protect the country. And that’s the fire were playing with… It’s got nothing to do… I should say it’s got very little to do with Trump. It’s got to do exactly with what happens to these institutions.

Ben Weingarten: What do you do when these institutions are politicized and corrupted, whether real or perceived? And I think in this case, it’s very real.

Andrew C. McCarthy: Well…The perceived is easier because perceived is… If you have a misperception you can correct a misperception. You become transparent. You put out information. You convince people that they’re wrong.

If it turns out that you have people who have abused their power, you have to hold them accountable if they’ve leaked to the press. We have this whole issue now with General Clapper — that needs to be investigated. And if it turns out that, if he leaked any national security information — and I’m not talking about the Steele Dossier — I’m talking about, if you go in and brief the president on something, you don’t then go tell the media what we briefed the president about it.

Ben Weingarten: And he perjured himself before, so his credibility is already in question.

Andrew C. McCarthy: I hate that part of it because I actually, unlike a lot of… I’ve had many times in the last couple of years where I went to bat for somebody’s credibility, only to be shown to have been the one who was wrong, or at least the one who has egg on his face. But I told people that I thought Clapper got put in an impossible position in that [2013 Senate Intelligence Committee] hearing [on bulk metadata collection]. He handled it in an abysmal way. [Senator Ron] Wyden set him up with that question. The question was asking for classified information, and Wyden knew that that? And what Clapper should have said is that “I can’t answer that question in an open session,” which is what they always say. For him to not only lie there, but also then afterwards try to rationalize the lie by saying he said the least damaging thing, that is just preposterous. But I actually went to bat for Clapper after that and said, “Most people who are in the intelligence business think that he’s a very fine and very effective intelligence professional, and been well thought of by people on both sides of the aisle,” as they say, for many, many years. And I think he handled things badly, but he was put in a hard spot, and he used bad judgment. But let’s not let that erase a career where he’s done good service to the country.

So I’m wrong! I mean, here he is again, he’s got a chance to do the honest thing, and if it turns out that he misled Congress about what he did, and if his answers to these questions can’t be resolved — he’s given inconsistent versions, and everybody says he’s given inconsistent versions, they can’t both be true — and I’d say, “Yes, that’s true, but they could both be false,” that needs to be investigated.

I don’t know what [former CIA Director John] Brennan’s been up to, but that needs to be investigated. There’s a very eerie, uncomfortable reality here that hasn’t gotten too much attention, which is that if you look at the report that they put out in January of 2017 — the Intelligence Assessment of Russian interference in the election — and you look at some of the stuff that was leaked to the press, there’s an eerie similarity between those things, which means those leaks had to have come out of the intelligence community, which we knew because if you look at the reporting, the stories themselves, say, “former and current intelligence officials.” And there’s all kinds of stuff that came out. It’s reprehensible.

So it comes out under circumstances where Obama…Having already said that Russia couldn’t have rigged our election, then gets on board with the Democrats’ narrative that the Russians rigged the election, and orders this report to be done. And if you think about it, if you ask the intelligence community for an assessment of what Russia did to interfere with our election, in normal Washington, that would be, “And get back to us next year.” He wanted that report by the end of December, beginning of January because he wanted to still be president when he came out ’cause they wanted to be able to use it. So there’s a lot of stuff that went on here that’s very, very disturbing.

And I don’t really think it’s about…The importance of it in the immediate sense is about Trump, but the lasting importance of it is the credibility of these institutions that are very important. And I just think they’re making a big mistake saying that the problem here is the Congressional investigators that are calling this conduct into question, and making the agencies look bad. That’s like shooting the messenger. The problem is the people who committed the conduct.

Ben Weingarten: It bears noting on a narrow point about that Intelligence Assessment that was released, leaving aside the fact that it was portrayed as being some unanimous assessment, which it was not — it was the principals at a few different agencies that dealt with it — that the report out of the House Intelligence Committee indicates that in particular on the narrow point about “Were the Russian activities to try to help Trump win” in effect, that the practices that were used to come to that assessment completely flew in the face of basically being by the book. In other words, that narrow part of the assessment itself violated the rules and regulations governing these assessments to begin with, which just further points to the fact that the institutions are discrediting themselves. It’s not the people calling out the actions of the institutions.

Andrew C. McCarthy: Look, if you go into…Paul Manafort’s in the middle of cooperating — now, by the way…He seems like a creep to me for what it’s worth. But, he’s cooperating with two Congressional committees. And the night between the cooperation, you hit his place with a search warrant, and gather up stuff that if you had called his lawyers on the phone, they probably would have delivered to you.

Okay. Now, compare that to this entire narrative of Russian interference in the election is based on the hacking of the Democratic National Committee, and they wouldn’t even issue a subpoena to take their server. They relied on a contractor for the Democratic National Committee for the forensic examination that this whole narrative is based on, and I’m convinced as a prosecutor — and take this for what it’s worth but I did this or about 20 years — I don’t think Mueller could prove that Russia hacked the Democratic National committee, unless he’s got a witness who said “I did it.” You could not prove beyond a reasonable doubt on the state of the…I say this as somebody who believes it happened, but there’s a difference between believing it happened and being able to prove it beyond a reasonable down court. There’s not a case I’ve ever heard of where you don’t take the physical evidence that you need to prove something happened. And instead, you rely on a contractor for a political party under circumstances where the political party has a powerful motivation to blame the political opposition for what happened. You just would never… It’s malpractice not to have taken that server. But it’s not only malpractice in the abstract. How do you justify the two different ways of treating people? You can’t.

Ben Weingarten: At the end of the day when we’re through the Russiagate element of the investigations, and then the investigations of the other folks involved with what appears to be this elaborate plot — whether organic or whether it was actually more conspiratorial in the sense of the various national security, law enforcement, Justice officials getting together and trying to do everything they could to either cover missteps from the past or the like, however we wanna speculate on it. What does justice look like at the end of the day?

Andrew C. McCarthy: Well, we should be mindful of the fact that just like law enforcement is not a perfect tool for dealing with terrorism Because the main issue with terrorism is whether we have security, not whether we have accountability for terrorists in the sense that they’re sent to prison or whatever. The overarching American interest is security. In the political thicket…Law enforcement is not a perfect tool either because we don’t want the standard for our…the people that we repose political trust in to be whether they’re guilty beyond a reasonable doubt of indictable crimes. The reason that the Framers put impeachment, for example, in the Constitution, and the reason Madison thought that it was an indispensable power that Congress had to have was because…If you have somebody who’s not just corrupt, but incompetent or otherwise abusive of their authority, it’s much more important to be able to remove them from power than it is to convict them at a trial. It’s kind of beside the point whether they ever get convicted.

So, I think, to the extent that people have committed crimes, that are provable crimes, and Mueller has indicted a number of people, the Inspector General is looking at Justice Department people. As I understand it, the Attorney General is looking in the sense that he’s appointed — which I think was the right thing to do, we didn’t need another special counsel, what we needed was a competent, credible prosecutor inside the Justice Department to look at this — so that’s being done, this guy Huber… From Utah is doing that. If they’re prosecutable crimes, fine, go on ahead and prosecute them. But what I think really needs to happen is, you need an accounting of what happened here, and you need to remove people. To the extent that you have people who are still in positions of authority, they need to be disciplined in a very visible way. If they did serious things, they need to be fired. If they did things that are somewhat less serious, but still condemnable, they need to be disciplined, whether it’s long suspensions or you reduce their stripes, or whatever you do, that has to be done. But I think it’s gotta be done in a very public way that restores people’s confidence in the idea that when law enforcement and intelligence people violate the rules, that we trust them to enforce, that there’s accountability for that. And I think that’s much more important than whether they ultimately get indicted because our standard shouldn’t be, as long as they remain above indictable conduct it’s peachy as far as we’re concerned to have them in these positions.

Ben Weingarten: Practically, of course, then you would have charges raised of obstruction of justice because “Look, Trump is going and firing all these people who he claims don’t like him.” How would that actually work from a practical perspective?

Andrew C. McCarthy: Well, I have a big difference, a legal difference…

Ben Weingarten: Yeah, and let me stipulate that I don’t believe it’s obstruction to fire a subordinate, and you’ve argued it very eloquently.

Andrew C. McCarthy: There’s no question that presidents can be cited, and action can be taken against them for obstruction of justice. To argue that is ridiculous, to argue that it can’t happen as some people on my side of this argument do to me is just silly because we have the Nixon and Clinton precedents where you have obstruction being very much part of the articles of impeachment. But the difference is that that was obstruction by action that was illegal in and of itself. So in the Nixon case, you have bribery conversations. In the Clinton case you have suborning of perjury. That’s a crime. It’s a crime that results in an obstruction of justice. But the action that the president takes is criminal.

By contrast, I don’t think you can cite a president for obstruction of justice, or certainly you can’t prosecute a president for obstruction of justice — and I’m not…Getting into the timing issue, whether you can be prosecuted when he leaves office or whatever — I don’t think there’s an actionable crime of obstruction against the president for using legitimate powers that he has in an ostensibly legal way. So if he fires a subordinate, or he issues a pardon that has the effect…If you think about it, a pardon is the ultimate obstruction of justice, a pardon ends the criminal case. Yet nobody questions the president’s got the authority to do that. There’s a novel argument that contends that if the president has corrupt intent when he does this ostensibly legal action, that he’s committed prosecutable obstruction. I don’t think that’s true. I do think it’s entirely possible that he’s committed an impeachable offense. So if you think a president has issued a pardon so that somebody won’t testify against him in a proceeding, I don’t think you can prosecute him for obstruction on that, but I do think you could impeach him. It’s an abusive power. So we have an important different standard for criminal liability versus political accountability.

Ben Weingarten: You’ve hinted in a couple of columns at this, and it’s worth noting that the media has been almost completely silent on President Obama when it comes to almost any element of what we’ve witnessed in the last year and a half. Did President Obama ultimately insulate himself from everything that was going on with the most senior principals within his administration, or ultimately, are we going to find evidence that this comes back to his doorstep?

Andrew C. McCarthy: Well…I have a more Constitutionally classical view of this than what you’re driving at. I mean you’re asking essentially, factually is it gonna come back to his door step? It might. Look, he knew that Hillary had this system. He spoke to her…Email exchange numerous times. He knew based on what we learned from the Susan Rice memo that we learned about in connection with meetings that took place in early January [2018] that he was being briefed on what was going on on the Russia investigation, and talked with national security officials about what they should and shouldn’t share with Trump. We know that when they were looking at [Gen. Michael] Flynn, the New York Times reported that Obama political officials were consulting with the FBI about whether there was a case there or not. So it seems to be pretty clear that he was certainly kept in the loop. I think it’d be shocking if he wasn’t.

But we always talk about the unitary executive, or at least some of us Constitutional nerds do. The Framer’s idea was, all of the power in the executive branch is reposited in one official, the president, such that every other official in the executive branch does not have his own power. That official exercises the president’s power as a delegate. And that’s why a president doesn’t need a reason to fire anyone. Basically, you’re using my power. If I don’t want you to use it anymore, I get somebody else to use it. The Framer’s idea in creating that system is two-fold: One because they were interested in the survival of the United States, and they were frightened by the structure of responding to potential threats under the Articles of Confederation. They realized that they needed to unify power in one official who could make decisive moves in the event there was a threat to the country. You can’t have national security by committee. It doesn’t work. You have to have somebody who can make a decision when it’s a life and death situation. But the other more mundane, and in terms of accountability, more important, more significant element of their thinking was accountability. Namely, when you repose all the authority in one official, that official doesn’t get to say, “Well, that’s the FBI Director’s fault.” Or, “That’s the Attorney General’s fault.”

Ben Weingarten: The buck stops with the president.

Andrew C. McCarthy: Right. So to my mind, the president’s accountable for what his underlings do, and that doesn’t mean that we impeach — if some lower official does something corrupt, that doesn’t mean you impeach the president — but you expect the president to hold the person accountable. So the person gets fired or prosecuted or whatever. And if the president doesn’t hold the person accountable, then I think it’s perfectly fine to hold the president accountable.

Ben Weingarten: Two brief questions, separate and apart from Russigate… What do you, Andy McCarthy, read on a daily basis to know what’s going on in the world and to get your creative energies going with your writing.

Andrew C. McCarthy: I read the big daily newspapers…I try to look at the New York Times, the Wall Street Journal, the Washington Post. I have my array of internet sites that I look at. I’m a National Review person, so of course, I look at what’s going on at National Review every day. I read Powerline a lot because I like those guys very much, and they not only have good posts of their own, they always have picks of interesting things that have come out that day. The RealClearPolitics I think is a good assemblage of important stuff to read because — they have certain people who write for them who have a point of view — but you get a good sprinkling of what’s going on on both sides of the ideological divide.

I’ve been trying to read books more lately because I’ve stopped for the most port watching… Around here, we watch the news, but the cable shows at nine are not really news anymore. Some of it has just become flatly propaganda. And what I’ve learned is that I stopped watching some of the other networks because I didn’t like Pravda for Obama. And I’ve learned that I don’t like Pravda for Trump any better. I don’t like something that pretends to be news even if it’s to the benefit of somebody who for wont of a better word on my side rather than the other side. So I don’t find any of that edifying. Still, I think like Bret Baier does a very good show on Fox. I shouldn’t start singling people out ’cause then I’ll forget somebody I shouldn’t. But I like news shows. I spend my whole day in opinion journalism. I don’t need to get it on cable shows. And around here, we’re sports nuts so…

Ben Weingarten: Unfortunately, the New York Mets.

Andrew C. McCarthy: Well we got Stanley Cup Playoffs going on, there’s a lot going on. I’ve kinda given up the television stuff. That’s actually been like a 10 year glide, which now I’ve gotten to the point where I almost never watch it.

Ben Weingarten: Since you mentioned books, what are the books, if you can list them, that have had the greatest influence on your thinking, political or otherwise?

Andrew C. McCarthy: When I was a younger guy, Conor Cruise O’Brien wrote a thematic biography of Edmund Burke called The Great Melody, which was my favorite book for a long time and got me into — there’s plenty of Burke in the book, but then you wanna go… I sort of re-read in a more serious way all the stuff that you skim through in college so you can get through the exams… Whenever it comes up, I love that book.

I love Paul Johnson’s A History of the American People. And the reason I like it so much is, he starts the history of the United States about a century plus before the Revolutionary War, before the Declaration of Independence, and the point being that there was an American people before there was an American government, and that what the government, and the Constitution and everything that came after was about was about shoring up a very distinctive culture, and political entity in the sense of a “people.” I think it’s very faithful history, but I like the approach of it because I think it gets the progression right.

And…If there are important books that come in, I try to at least dip into them. There’s too much to read. We’re just sort of overwhelmed in it. Jonah Goldberg has a new book that I’m reading now. It’s fabulous. His first book, Liberal Fascism was a classic. I think this one is. Somebody who’s called it a classic is Yuval Levin, but I think Yuval’s book is a classic, which I read finally. I mean, I read it a little bit when it came out, but I finally sat and read it beginning to end a couple of months ago. It’s just really a titanic work. I’m reading Hillbilly Elegy, which is real interesting.

I’m not really a systematic reader. I have things that I’m interested in, but I’m not scholarly. I like philosophy, so I dip into all kinds of philosophy, and it makes me annoyed that when I had more time to do I didn’t just sit down and read it beginning to end. To read things in a systematic way, beginning to end, is a different kind of and more enriching kind of experience.

One semester, I actually taught a Constitutional criminal law case, a class at Fordham Law school. And I had been a prosecutor by that time for 10 years, I’m sure. And the interesting thing is, when you’re a prosecutor, problems come at you in terms of how they come up in cases. There’s nothing systematic about it. You have a certain kind of case, and then it implicates certain kinds of legal issues that come up. Whereas this course was the first time I looked at all the big criminal procedure cases from beginning to end, straight through. And what I learned, I actually came out with an insight that even though I had lived in the criminal law for all those years, I had missed, which is that a lot of American criminal law is driven by hostility to the death penalty. If you look at these criminal procedure cases, a lot of them are cases in which the court didn’t wanna impose the death penalty, but there was nothing particularly wrong with the death penalty procedure in the case, so they found some of the reason to reverse the result.

And that’s something you wouldn’t get from just as these issues come at you. But when you sit and look at them, you say, “man.” There’s all kinds of moral arguments about capital punishment, and does it really incentivize people against murder? And do we need it for retribution? And the like. I was never aware of what I’ve since decided was the most powerful argument against it, which is that it screws up the law. The burden that it imposes on the quality of justice — because these precedents, once they’re set, they don’t just apply in death penalty cases, they apply in all cases — so has the cost of having it been worth whatever benefit you get out of it. So it made me think about capital punishment in a way I had never done before, and that’s all because of being able to sit through and just go through stuff from beginning to end.

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Music Credit:
Backed Vibes (clean) Kevin MacLeod (incompetech.com)
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