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Dissecting the Trump-Russia Investigations: A Conversation with Andrew McCarthy

with Andrew McCarthy

We welcome National Review contributing editor, and former Assistant US Attorney Andrew McCarthy to Liberty Law Talk for a discussion of his recent book, Ball of Collusion.

Richard Reinsch:  Today we are talking with Andrew McCarthy about his latest book, Ball of Collusion. Andrew McCarthy is a contributing editor to National Review. He is the author of the New York Times bestsellers, Willful Blindness and the Grand Jihad. Before his writing and commentating, he was a lawyer. He was an assistant United States attorney in the southern district of New York where he led the successful prosecution of the 1993 World Trade Center bombers and also participated in the prosecution of bombings of American embassies in Kenya and Tanzania. Andrew McCarthy, glad to have you on the program.

Andrew McCarthy: Richard. I’m a real admirer of your work, so it’s a delight to be here.

Richard Reinsch: Well, thank you so much. Now thinking about the title of your book and as we were discussing offline, I thought I understood the Mueller Investigation and yet I read your book, it’s incredibly complicated. There are a lot of players, a lot of facts, details, motives to keep in play here. So I’ll start with a basic question. What was or is the Ball of Collusion?

Andrew McCarthy: Well, I think what the ball of collusion is, it is sort of a combination of a political narrative as it is melded with the tools of, or the arsenal of an investigation. So collusion came to the public essentially as a political narrative, which was designed to lead people to believe that there was a conspiracy, a very particular conspiracy, a cyber-espionage conspiracy between the Russian regime and the Trump campaign. And specifically, this was the operation that has been attributed to Russia by our intelligence community, which was designed to influence the outcome of the 2016 campaign. And according to at least the consensus of the intelligence community influenced it with the specific purpose of advancing Donald Trump’s candidacy and undermining Hillary Clinton. So that was presented to the public as a political narrative in the aftermath of the 2016 election. And to some extent before the 2016 election, but I think it was really promoted with a lot more urgency afterwards and then-

I was going to say the other aspect of it is that it actually is a formal counter intelligence investigation where the background or the backbone to it, which I think was a protectual counterintelligence investigation, and I say protectual in the sense that it was really a criminal investigation, but they didn’t have a predicate crime. So the use of the counterintelligence powers of the government was the enabler which allowed the FBI and the Justice Department to look for a crime even though they didn’t have one.

Richard Reinsch: Now, to put a fine point on it, you say at one point in the book, the Trump-Russia investigation was built on a fraud. What do you mean there?

Andrew McCarthy: There was no evidence that there was … certainly no credible evidence that there was a counterespionage conspiracy between the Trump campaign and Russia. There’s not even really to be blunt about it any evidence that the Trump campaign had the competence, and the wherewithal to be a participant in a cyber-espionage conspiracy. Nor was there ever any credible indication that Russia, which is quite expert at cyber-espionage ever wanted or needed the help of any American partners, not just the Trump campaign, but any campaign. The only thread on which that was built was a claim by a former British intelligence official named Christopher Steele, that there was this enterprise between the Trump campaign and Russia. And that was based on his claim by his own description of it was based on sources of his, some of whom were anonymous, all of whom were two or three or four steps removed from him in a hearsay sense.

Andrew McCarthy: And when he got sued for libel in Britain, he himself said that this was raw intelligence that hadn’t been verified or corroborated and needed to be investigated. Yet this was the “evidence” that the FBI and Justice Department went to the foreign intelligence surveillance court on the basis of, so that’s why I say that the essential claim of a conspiracy between the two was fraudulent. That is not to say that there would no connections between the two sides. In fact, I spend a good deal of time in the book elaborating on those. But what we care about in law enforcement is not association or collusion, which is a weasel word. Collusion is just a concerted activity. You and I are colluding by having this conversation. What law enforcement and intelligence people are supposed to care about is conspiracy. And there wasn’t any evidence of that.

Richard Reinsch: When did intelligence officials, law enforcement officials in the executive branch begin to investigate the Trump campaign? And, I guess we’re talking about, what was their concern to begin such a review or investigation?

Andrew McCarthy: This is a really important question because it goes to I think the principle public confusion about the investigation, which I’m actually feeding into in a sense by calling it the investigation because I don’t think it ever really was the investigation as if it were a single set-piece in the way that we deal with the investigations, for example, when I was in the Justice Department where you have some criminal events or some threat to national security that you know of on the basis of some information that comes to the government’s attention, and as a result, you open a formal investigation. That eventually happened here, but I think it’s a late breaking development in the factual continuum that we have. The investigation I believe really began in the latter half of 2015 and was based on a combination of-

Richard Reinsch: You said 2015.

Andrew McCarthy: 2015, yes. In other words, after … I should put a marker on it. After Donald Trump announced his candidacy for president, which if I’m remembering right, was around mid June of 2015.

Richard Reinsch:  So you’re saying right away? Right away they were concerned with Trump?

Andrew McCarthy: And when I say that I’m going on a variety of things that have been publicly reported, not the testimony that was given in congressional proceedings by John Brennan, who was the CIA director in the latter half of the Obama Administration, who says that he was getting, that is the agency was getting, streams of intelligence from foreign partners raising concerns about Donald Trump. And that those went back into 2015, and they became something that the CIA became very concerned about in the early quarter of 2016. But as I lay out in the book, I believe that particularly our European allies began raising concerns about Trump pretty early on after he announced his candidacy and there were allegations. This is one of the fascinating thread of the investigation that will be very difficult to get to the bottom of because as much as we want accountability for what happened here, these partnerships that we have with foreign intelligence services are based on mutual commitments that we’re going to keep the information confidential.

So they have to walk the line, which was a difficult one to walk between keeping our government accountable and at the same time respecting the arrangements that we make in these intelligence partnerships that we have with foreign countries that actually are quite important to national security. So whether we’ll ever get all of the answers here, I’m skeptical about. What we do know, at least on the basis of what’s been revealed thus far, that reporting came into the CIA from various European countries. And I think my memory is that Brennan or other intelligence officials acknowledged that some of it came from the Baltics, from France, from Italy I believe from Germany as well. And we can see in the factual recitation, and the investigative activities that have been confirmed, that there was a lot of activity involving Great Britain. We have our closest intelligence alliance with Great Britain and our agencies do not operate in Britain unless the Brits have been given a heads up about that.

And often we coordinate with them when we do act in their territory as they do when they act here. So, know that there was a lot of-

Richard Reinsch: What do you think they were saying?

Andrew McCarthy: I think Trump especially in some of the more explosive and controversial statements that he made early on in his campaign, and these really continued right through the election. But he was, to put it mildly, I think on the basis of his rhetoric, a skeptic about the utility of NATO and about the post World War Two world order that basically we, and our allies in western Europe have presided over and fortified for the last three quarters of the century. Trump certainly was skeptical about whether we were getting, we the United States, we’re getting the value of our investments in NATO. He suggested that our allies are all free riders. They don’t pay their fair share. We get entangled in too many foreign escapades at the expense of being able to attend to things in our own country and so on.

If you couple that with the other part of Trump’s rhetoric that was notable, which was the very friendly rhetoric towards Russia and toward Vladimir Putin personally. I think this was jarring to a lot of our allies and was particularly jarring to our allies in the Baltic who are justifiably, I think fearful watching what Putin and his regime have done in Ukraine, watching what they’ve done in Georgia that there’s obviously a revanchist impulse in that regime. I don’t know that the Putin really believes he could reestablish the Soviet Union, but he certainly does want to grab back as much as he can about his near horizon.

I think it be the allies obviously found all of this very alarming. Some of it was alarming because the idea that they would have to pay their fair share and pay what they’ve actually promised to pay into the NATO would put great strain on their budgets, they could give him what their and arrangements had been all these years. But I also think that there was genuine fear that Trump could number one, go soft on Russia, which would only encourage its aggression. And number two, create vacuums in the world if the America retrenched where bad actors have a tendency to just fill in when we scaled.

Richard Reinsch: So you would say, I don’t know, this period, latter half to 2015, early 2016, our intelligence officials are watching Trump. They’re concerned about what’s going on, on the basis of these reports. Hearing from other foreign intelligence agencies. At what point though, to things pick up, I mean, you mentioned sort of the formal investigation, which is July, 2016, but I also gather from your book, they were taking a deeper look even before then.

Andrew McCarthy: I think so. I think in terms of just aside from the geopolitical concerns, which I think are profound, there’s also specific information that comes into the CIA about the possibility that Russian money is actually going into the Trump campaign. And we suspect that that report comes from Estonia, but that has never been formally confirmed. There’s a lot of reporting about it, but whether it was actually Estonia or some other service, I hope we’ll find out someday, but we haven’t. So they were clearly looking at something that was more concrete than just geopolitics and around the same period of time, and now we’re talking about the transition from 2015 into 2016. You have this situation where Paul Manafort and Carter Page come into the Trump campaign, and they are figures who are of interest to our government because of their interaction with … Well, the way the government would say it would be, with people and elements who are connected to Russia and the Russian regime, as I argue in the book.

I think with respect to Manafort in particular, it’s much more about Ukraine than Russia. And part of the narrative is … part of the political narrative as to exploit the fact that most Americans I think don’t appreciate the differences between the politics of Ukraine and the politics of Russia. We were very susceptible, I think, to the idea that because Manafort had these connections to Ukrainian oligarchs who were connected to a party that is generally pro-Russian that they were almost effectively KGB agents. And there’s a big difference between being a Ukrainian oligarch and a Russian operative.

Richard Reinsch: No, I was going to say, so Manafort had … he had made millions of dollars as you document in the book representing or consulting Ukrainian politicians in particular heads of state in the Ukraine … It’s interesting too, you said he had actually counseled one of them to be much more in favor of the European Union for the future Ukrainian disposition as opposed to being within the Russian orbit. And yet, as you’re noting precisely because it’s Ukraine somehow that makes him open to being or being seen as a Russian agent. I guess when I read that, one of the things that you hear from people sort of in defense of investigating Trump or in defense of the Mueller Investigation was, it would have been hard for Obama intelligence officials to not be concerned on the basis of who Trump was aligning himself with. It just seemed odd.

Andrew McCarthy: I think that there’s a fair point in that, and it’s an argument that is frequently made. I guess my pushback at that is, and I have said this for a number of years of writing about this. If you legitimately thought that a political campaign or particularly a political candidate for the presidency actually was or there was strong evidence that he might be an agent of a foreign power, that would be something that the incumbent government would not only … it would not only be permissible to investigate that, I think they’d be obliged to investigate it. So what we’re always talking about here is what’s the factual predicate and are we going beyond … do we have something other than mere speculation? And if there’s some hard evidence of traitorous behavior or at least loyalties to another government that could undermine our government.

And I think you have to do more along those lines than speculate. I think there has to be some hard evidence because we have … to look at it from the other side, these counterintelligence powers that the government is given are awesome powers that are intended. The purpose of them is to protect the United States from foreign threats to national security. And we have a presumption against there being used in connection with American politics, domestic politics and there’s a long history that attaches to this, a little modern history that goes back to the 60s and 70s. The whole idea, the whole reason that we have FISA which I think as I explained, the book is a very imperfect solution to the problem that it was designed for. But part of the reason, I think a big part of the reason that we have it is because of the not only the potential, but the episodes of abuse of these intelligence powers.

The overarching message with all of this is that, if you’re going to use counter-intelligence authorities in order to investigate people connected to a political campaign, that you better have very strong evidence that there is justification for it. And just to finish the point to go to what you originally were asking me about, I don’t have a quarrel ever with the idea that the government has, enough facts from the government’s way, that they have a reasonable basis to be concerned and even to dig some more and look some more. Where I think you have to start to draw the line is, if they’re going to use tactics like going to the foreign intelligence surveillance court or using informants and operatives to infiltrate political campaigns, then I think you have to have a much stronger basis than just mere speculation that something may be a myth.

Richard Reinsch: So let’s talk about it, because this sort of leads into my next question, when the, I don’t know, formal or opening of a counter intelligence investigation, the Trump campaign in July of 2016, so we’re told when that happens, what’s the rule inside the Justice Department? Or is there a law or a regulation for, “Okay, we’re now investigating a presidential campaign of a rival party”? So automatically there are problems here. So how do we prevent abuse? How do you prevent abuse of investigating on a whim or for partisan purposes? And did the Justice Department in your opinion meet that standard?

Andrew McCarthy: No, I don’t think they did. Their own regulations talk about investigations being factually predicated and they talk all the time about predicated investigations. But I think the closer that you look at the regulations, the more you realize that they’re written to give the government maximum flexibility so that they can justify virtually anything. And that what we’re really reliant on is having responsible people in positions of authority, particularly supervisory positions who are mindful of, not only the investigative imperatives, but also the other interests that have to be respected and guarded, particularly keeping political campaigns insulated from the use of intelligence techniques or law enforcement tactics. You’re really more reliant I think on people than on regulations because they write the regulations in a way that really is designed so that if there’s a problem that they can usually justify themselves.

And I think if there’s one major failing that happened here, and this goes to actually what got me particularly interested in all of this. I mean, I’m very interested in the history of elections and the 2016 election in particular because I followed it so closely, but I was more interested in this episode from the standpoint of somebody who worked on national security investigations in the Justice Department, and as someone who was simply just interested in the history of the 2016 election. And what I was very concerned about and I continue to be concerned about is the abuse of our counterintelligence authority, and fact that I told people when we first started to learn about some of the things that had happened here, that they were crazy and that these things couldn’t possibly have happened, particularly the idea of going to the foreign intelligence surveillance court with a screen of opposition research that hadn’t been verified or corroborated.

When friends of mine first raised the possibility that the FBI had done that. I said, “You guys are crazy,” and insisted that when the dust settled, what we were going to find was that the FBI will have done what the FBI always does, which is, they may have taken this opposition research that was sponsored by the Clinton campaign. A lot of people say that they shouldn’t be able to do that. I tried to push back on that by explaining, in my years as a prosecutor, I took information from the worst people that you can imagine. I took it from terrorists, the mafia, hitmen and fraudsters and you name it, we took information. But the point is you can take information from anyone-

Richard Reinsch: But you got to verify it.

Andrew McCarthy: What you do when you get the information right? And the more suspect the sources, the higher your obligation is to corroborate it and make sure that you’re confident about it before you do something like bring it to a court. So what I said was, what you’ll find is that the FBI will have taken those four or five or six facts that they need and make out probable cause. And when we’re talking about foreign counter intelligence, we’re not talking about probable cause of a crime, we’re talking about probable cause if someone is acting as a clandestine agent of a foreign power and what I said is they’ll vet these facts. They’ll go out and get independent evidence for it. They’ll talk to other witnesses, they’ll gather records, they’ll do with the bureau does. And by the time they went to the FISA court, this will no longer be Christopher Steele dossier. This will now be an FBI investigation. You’ll never even have to hear Christopher Steele’s name. And what ended up happening was what I said could never happen is precisely what happened. So one of the things that’s really-

Richard Reinsch: So does that mean, lawyers for the government, and correct me, they’re trying to get surveillance on Carter Page, who works in the Trump campaign, has longstanding ties to Russia, tried to open an investment firm to invest in Russian energy. And the book documents how he had been questioned about various Russian issues by federal prosecutors in the past. So he’s of interest to them. But are you saying this memo is basically presented to the FISA court as is, with very little-

Andrew McCarthy: Correct.

Richard Reinsch: And they don’t disclose either from your book, if I remember, they don’t disclose that this is Clinton. The Clinton campaign had paid for this. That was left off I think.

Andrew McCarthy: I’d be interested in your reaction to this, but my reaction to this is just as a simple matter of common sense. If you look at what we’ve gotten … what’s been redacted from the submissions that they made to the FISA court, the first submission, if I’m remembering correctly, the footnote about Christopher Steele and his potential bias and the aspect that he was working for Fusion GPS and how he came to the investigation and why they bring the information. The footnote goes on for about a page and a half. And just the footnote. And I always thought, just having been in front of a million federal judges over the years, if you’re taking a page and a half to avoid uttering the sentence, they are working for the Clinton campaign, you probably need to disclose the sentence that they are working with the Clinton campaign.

I think what happened here is that they almost convict themselves of being disingenuous by the energy that goes into withholding information. It’s really quite astonishing when you look at what they filed. But they did essentially do the thing that I said would never be done, which is they took Steele’s information and they just basically cut and pasted it into FISA submissions or applications which are supposed to be called verified applications to the foreign intelligence surveillance court. And when director Comey, then director Comey, was asked by a Senate committee that he was briefing about why they would do that when Steele actually is not the source of any of the facts that the court was being asked to rely on for purposes of probable cause. He’s actually more like a case agent. He’s the accumulator of information from a bunch of sources who were three or four steps removed from him. And just so our listeners understand, Steele has not been in Russia for about 20 years. His cover was blown as an intelligence officer in the late 1990s.

Richard Reinsch: For the British.

Andrew McCarthy:  As I understand it. Right, yes. And he did run the Russia desk for MI6 for about four years in the early 2000s, but he ran it from London. He hasn’t actually been in Russia. And everything he knows that comes from Russia, it comes from sources that he has that are quite many steps removed from him and a number of whom evidently don’t know that they’re sources. They’re talking to other people who are talking to other people who are talking to Steele. That’s how attenuated it is.

Richard Reinsch: Which raises the obvious question of was he being played?

Andrew McCarthy: Yes. Well that is a big question. And judging from what we’ve heard a little bit cryptically in the testimony that Attorney General Barr has given in the few occasions that he’s been before congressional committees, it seems to me that that is one of the major things that the investigation that he has basically commissioned in the Justice Department. That’s one of the main things that investigation is looking into, whether Steele was a vessel for this information coming into our government. I think there’s a very good possibility that, that’s true.

Richard Reinsch: I didn’t realize, and you raised it in the book, and I’ll butcher the Russian agent’s name, there was a Russian agent that defected to the British and Steele was actually his handler inside, or for British intelligence.

Andrew McCarthy: He lived in England.

Richard Reinsch: And he was murdered on British soil. So like Steele is … it’s like this guy is definitely compromised. And I guess maybe we’ll find out, was that taken into account at all by Americans dealing with the information they received from him.

Andrew McCarthy: Well, there’s an interesting … I rely on some really good reporting that was done by Eric Felten, and I think it’s the time he was at the The Weekly Standard. But he points out that for years during the Obama Administration, Steele was providing information to the State Department through this guy, Weiner, who is an old sort of right hand to John Kerry, I think he was a former Clinton administration official, if I’m remembering. And he comes back to the government with Carrie, when Carrie becomes Secretary of State, and it’s through him that Steele starts to bring some of his reporting into the State Department. And the old Russia hands at the State Department say that they took Steele’s information with a grain of salt because they knew that a lot of his clients were Russians and that they felt that they were getting, as Eric put it, I think the Putinesque spin on things and that doesn’t necessarily mean that Steele was intentionally trying to give them the Putinesque spin. He may have just been being fun. I guess we’ll find out.

Richard Reinsch: The question here too, I mean, just thinking about the sort of … Our own narrative sort of comes together and sort of hard to believe facts, our people in Washington in these positions you think would be much more skeptical than they were. Also, we’ve got our 28 year old master of foreign policy theorist, George Papadopoulos who ends up going to jail for false statements he gave to prosecutors, but he was really the linchpin for opening this formal investigation on the basis of conversations he had with an Australian diplomat where purportedly he says, “We’ve got emails from Clinton or we’re being told that the Russians are going to release emails and we know about it.” And of course the record is a lot more complicated, this guy was sort of relied upon as a direct connection to the Trump campaign and it’s supposed collusion with Russia. That in of itself is bizarre to me. And you write about that at length in your book.

Andrew McCarthy: Well, just to deal first with the opening of the investigation, I think that was a formal paper reality on something that was ongoing for a long time before they actually formally went to paper and opened it. And the George Papadopoulos episode maybe the immediate cause, but it’s not the overall, cause. There’s a lot of reasons why they opened the investigation. And in terms of the political narrative, Papadopoulos became the subject of a lot of emphasis, largely because the Carter Page thread, which initially was in the media’s mind, the big home run of Collusion when the Steele dossier couldn’t be verified and became increasingly discredited, that story became discredited. And as I say in the book, Papadopoulos becomes collusion 2.0 at that point, because the Page thing has collapsed.

The Papadopoulos story is just really remarkable. He is a 28 year old kid, who was so green that when the Trump campaign, for whatever reason, signed him on as a foreign policy advisor, and this is during a time when precisely because I think of the pro-Russia and NATO skeptical rhetoric, that sort of stuff that was coming out of Trump’s mouth and out of Trump’s campaign, the GOP, the Republican foreign policy really thumbs its nose at Trump, and nobody wants to be involved in that campaign. So they’re scrambling around for advisors because the media is asking, who’s going to advise you? And they bring in these obscure people like Carter Page and George Papadopoulos. Papadopoulos at that point was still putting on his resume that he had participated in the Model UN, which I had to do some research on, it was a middle school project.

But, he hadn’t really much experience, but because he was publicly held out as an adviser, he gets approached by this character called Joseph Mifsud, who I think is probably the most interesting figure in what’s a very interesting narrative. And he’s identified, I think in the last two or three months, former director Comey wrote a op-ed in the Washington Post that flatly said that Mifsud was a Russian agent. And as I show in the book there’s no evidence that he’s a Russian agent and there’s certainly scant evidence that he’s a Russian agent.

Richard Reinsch: What do you think he was?

Andrew McCarthy: I think he’s probably a British agent. I don’t know that he was an operative, but I think that if he was an operative, there’s a lot better chance that he was a British operative than Russia or any other. But I think it’s somebody who had-

Richard Reinsch: Deliberately sent to spy on Papadopoulos?

Andrew McCarthy: Well, this is what we don’t know. I mean, the frightening possibility here is that the Brits or that a British American intelligence operation targeted Mifsud at Papadopoulos loaded him up with information, which Papadopoulos then unburdened himself to the Australian ambassador Downer, who also has extensive ties to British intelligence. And then he takes the information and goes to the Obama State Department in the embassy in London. They feed him the information and then they take the information as the pretext for formerly starting the investigation. Now, I should underscore here, we don’t know that that happened. To my mind, as I say in the book, that’s the worst case scenario. But here’s what we do know, which is to my mind, disturbing enough. Mifsud has these Russian contacts.

He knows people in the Russian government, but he’s basically an academic. There isn’t good evidence that he has intelligence ties to Russia. And that he’s got any reason to know what goes on in Russian intelligence. That he would have had any reason whatsoever to have known about Russia’s cyber-espionage operation. He has this conversation in London on April 26, 2016 with Papadopoulos in which he allegedly tells Papadopoulos that the Russians have thousands of emails of Hillary Clinton. There’s a couple of interesting things about this. First of all, our only evidence that Mifsud said that is Papadopoulos, who is not reliable. I mean the factual record is that he’s not reliable and he’s pled guilty. What he pled guilty to was misleading the FBI agents in the investigation. He is the only person who says that Mifsud mentioned thousands of emails from Hillary Clinton.

I think that’s important to emphasize because it’s something that has not been covered at all that I can detect in the media, and is barely mentioned sort of in passing in Mueller’s report, which is that the FBI actually interviewed Mifsud a week after they interviewed Papadopoulos and Mifsud denied flatly that he said anything to Papadopoulos about emails. He says that he doesn’t know what Papadopoulos was thinking he’s thinking of but he clearly got that wrong. Now, he could be lying, possible. But the interesting thing about it, and this goes to my wondering about his connection to British intelligence. If there’s one thing that we learned during Bob Mueller’s investigation is that he knows how to bring a false statement case against people who lie to the FBI. Mifsud has never been charged. He made these statements to the FBI, and there was never any charge brought against him. Mueller never alleged that what he told the FBI about his conversation with Papadopoulos was untrue and he says it didn’t happen. That’s one thing.

Second thing, let’s assume it did happen. The emails of Hillary Clinton that were publicly, notoriously being spoken about at that time were Mrs. Clinton’s emails from her own private server that Donald Trump was talking about all the time, the 33,000 emails that she had destroyed and didn’t turn into the government, that there was a lot of speculation had been hacked by foreign intelligence services and the like. If they were talking about Clinton emails, those are the emails that Papadopoulos said that he understood were being discussed. And the reason this is interesting is a few weeks after, I think it’s about two weeks after the Papadopoulos conversation with Mifsud, this is when Papadopoulos has this meeting with the Australian Ambassador Downer in the club in London where they’re having a couple of drinks and they’re having this conversation and we don’t know exactly what Papadopoulos said to Downer, to the ambassador.

But we do know that Papadopoulos says that he didn’t mention emails and Downer does not say that he said emails. There was some indication from Papadopoulos according to Downer that the Russians had some information that could be damaging to Hillary Clinton that Papadopoulos thought for some reason they were going to release. And from that, now remind you, this conversation happened I believe in early May and Downer at the time thinks so little of it, he reports it to … his State Department reports it to the intelligence services and that’s the end of it. Flash forward about two and a half months. And then, Wikileaks puts out the tens of thousands of DNC emails that have been hacked by the Russians. At least that’s the allegation, whether that could be proved is another question.

But let’s assume that if the Russians did it, Wikileaks puts this out, Downer sees that these emails have been leaked at the time of the Democratic convention and suddenly says, “Oh, that must have been what Papadopoulos was talking about.” So he tootles down to the American Embassy in London and tells them that he thinks that this conversation that he had with Papadopoulos must have been about these DNC emails that got released. But there’s a lot of reasons to doubt that Papadopoulos was told anything about the emails even by Mifsud. If they did discuss emails, they clearly were not talking about the DNC emails and Papadopoulos himself never mentioned emails to Downer that is completely a deduction, that Downer draws from the fact that there’s a report of these hacked emails in the international press. So the whole thing is built on a deduction by this Australian ambassador, that seems to be a pretty steep departure from what Papadopoulos was actually talking about, if what he was talking about was honest. That’s the basis for your investigation.

Richard Reinsch: I mean, it’s amazing, so many personalities, so many facts, so many stories to pursue. You wrote a lot about, I remember reading this, if we move forward to the calling of Mueller to be the special prosecutor by Rod Rosenstein, who is deputy attorney general because Sessions had recused himself on the basis of advice from lawyers in the Justice Department, from handling any aspect of this Russian situation. Rosenstein appoints Mueller to be the special prosecutor. And you wrote that, Mueller himself or that Rosenstein himself had violated Department of Justice regulations in appointing a special prosecutor.

He gave Mueller the authority to investigate any links and or coordination between the Russian government and individuals associated with the campaign of President Donald Trump and any matters that arose or may arise directly the investigation. He tried to cure it by writing a separate memorandum justifying what he did, but that was redacted. And just thinking about all the conversation we’ve had today, the facts, the deductions and logic, things like that. Why do you think, Rosenstein didn’t want to disclose why he called on Mueller to be the special prosecutor, the factual basis he relied upon?

Andrew McCarthy: Because I think they relied on the Steele dossier, and the Steele dossier was already thought to be dodgy by that point. It was around that timeframe and thereafter that it was discredited. But we have good reason to think that when … what ends up happening, just to be clear on what the timeline is, in a remarkable bit of testimony in March of 2017 when he was still FBI director James Comey confirms the existence of the counterintelligence investigation and unbelievably identifies the Trump campaign as a subject of the investigation and suggests that at the end there’s going to be an assessment about whether any crimes have been committed. This violates virtually every rule in the book from the Justice Department, the FBI about proper commentary about people who haven’t been charged in about anything about other investigations and so on.

But Rosenstein when he appoints Mueller basically adopts Comey’s testimony just described before the House Intelligence Committee. And it does violate the special counsel guidelines because, you’re not supposed to have a special counsel unless you establish both that the justice department has a conflict that’s so profound at can’t investigate in the normal course, and there’s a factual predicate for a criminal investigation, and it’s the crime that is the source of the Justice Department conflict. He didn’t lay out a, a predicate for crime or describe a conflict that the Justice Department supposedly had. What he gave to Mueller was the counterintelligence investigation that Comey had described. And then there was no basis in the special counsel regulations to assign a prosecutor or special counsel, a counterintelligence investigation. In fact, counter intelligence in the government doesn’t get a prosecutor because it’s not prosecutor work. It’s not designed to build criminal cases.

So I think Rosenstein recognized that he had a problem, and it could become a bigger problem if Mueller were to proceed to bring any cases at that time, it looked like they were moving forward on Paul Manafort. There could be legal attacks made on the propriety of Mueller’s appointment. So I think in order to try to fix that problem Rosenstein issues this memorandum in the beginning of August of 2017 where he elaborates on the basis for Mueller’s authority to conduct the investigation. And as you say, most of that has been redacted, but we did get to see some of it. And the reason we got to see some of it is they had to disclose some of it in connection with Manafort’s prosecution. And what was disclosed about Manafort was that Mueller was given the authority to prosecute him in connection with his Ukrainian activities. And it also said in connection with the allegation that Manafort colluded in connection with the Trump campaign with the Russians. The only source that we know of for that allegation is the Steele dossier.

So I think we can reasonably infer that the parts of the memo, the three or four fifths of the memo that we haven’t gotten to see yet because it’s so heavily redacted rely just as the Manafort part of it did on the Steele dossier as the basis for Mueller’s authority to conduct the investigation. In other words, that’s the factual basis to believe the crimes may have been committed, namely the Trump campaign, complicity in Russia’s cyber-espionage that only comes from Steele. And I suspect that it’s the reason the Justice Department hasn’t wanted to disclose that is it would have cast a lot of doubt, at least politically, if not legally on the propriety of Mueller’s investigation if heavy reliance was placed on the Steele’s dossier for justifying it. My attitude about this has always been if they would take what I regard to be the much more important substantive, dramatic step of relying on the Steele dossier under oath in connection with FISA applications, that is applications to the foreign intelligence surveillance court.

To me, that’s a much bigger deal than the basis for an investigation. So there’s no reason in my mind to think that if they relied on the Steele’s dossier in connection with the FISA court, why on earth they wouldn’t rely on it to justify their investigation. I don’t see any reason why they wouldn’t, although I completely get why they don’t want to tell us.

Richard Reinsch:  Do we learn anything from the Mueller report, from the Mueller Investigation about any of this collusion? Is there anything revealed? I mean, when people write about it, it turned into an obstruction investigation largely. And that’s sort of what we discussed after the Mueller report was released to the public. You wrote also about certain Russian companies Mueller indicted in which he made it publicly known that these Russian companies were indicted. One of them, Concord Management, wanted to defend itself in public, and wanted to defend itself in court, I should say. And dared Mueller to prosecute them, to actually bring charges against them in court. Did anything ever happen with that?

Andrew McCarthy: They’re in court now. And what’s going on is the Russian defendants are demanding the discovery, and the Mueller Investigation is trying to not give it to them or trying not to give it to them in a way that they can’t disclose it to their principals who are in Russia of course. Just to give a quick background on this, Mueller thought that these indictments were freebie, they were more in the nature of press releases than indictments because everybody knew that Putin is not going to allow any Russians to be extradited to the United States for trial on any of this stuff. So knowing that there was never going to be any trial, they could be very extravagant in their allegations because they’ve never gone to be tested in court. But I think the mistake that he made was to invite three Russian companies, which are really shell companies.

In addition to indicting Russian individuals, because unlike an American company, that’s actually a going concern, the Justice Department doesn’t really have a hammer that it can threaten a Russian shell company with, it can’t put it out of business, the kinds of things I can do to an American company. So what ended up happening was, as you point out, one of these Russian companies, Concord showed up in court and said, “We’re here, we’re ready to be tried. We need the discovery. Let’s have it.” And the prosecutors responded with the, I think the formal legal term is hummina hummina hummina because they clearly were not looking to try this case. And so what they have basically been doing for the month since that’ll happened is first trying to say that there was a question whether the Russian business had even appeared in court, even though they were sitting at the other table next to the prosecutors because they hadn’t been formally served.

The Justice Department said that they had let the Russians know that they had filed these indictments, but they had never heard back from the Kremlin. Defense lawyers are there at the other tables like, “Well, we’re here.” That wasn’t going to work. And then they started to complain about the discovery. But I think the most interesting thing that’s arisen out of that, which hasn’t gotten enough attention either, is that this company objected. This is in connection with what’s the so called, which is the propaganda operation, the social media accounts that put out all these messages. And what they demanded, what Concord demanded is, “What is your evidence government that the Russian regime, the government, the Kremlin directed this operation because you keep saying it in press statements and you imply it in your indictment, what’s the evidence of it?” And the Justice Department tried to stiff on, and for a long time. The court finally said, “If you have evidence, you have to tell them what it is.” And they had to come back and say, “Well, gee, we don’t really have any evidence of that.”

Richard Reinsch: Sort of a lack of seriousness almost within the Mueller team.

Andrew McCarthy: Yeah, but this is a big deal. I mean, if they’re making a concession that the Russian government wasn’t actually involved in the social media plot, which is one of the two bases, one of the two bedrocks for the cyber-espionage campaign, the hacking being the other one. What I’ve said all along was I accept the intelligence community’s assessment that Russia’s probably responsible for this, but I don’t think they could ever have hoped to prove it in court beyond a reasonable doubt, and here we have the first time that anyone’s gotten a chance to call them on it, the government had to come back and say, “Well, gee, it turns out we don’t have evidence to tie this to the Russian regime.”

Richard Reinsch:  That’s incredible. Looking at all of this, t was made, not that it was started by it, but it was made worse by, I think, features of the administrative state. Something like, the FISA court, which sort of tries to add a legal patina to executive intelligence gathering, which is something that can never really be justified legally. It’s a decision made by political actors who are accountable constitutionally, both to Congress and other people for their decisions. But the FISA court sort of gives them cover, legal justification for collecting intelligence. And FISA usually approves applications for surveillance 90% of the time. And so you have the Steele Dossier helping to justify surveillance of the Trump administration and indeed spying on the Trump campaign.

Also, Special Counsel Mueller, and just the way in which the executive branch investigating itself with a prosecutor who has only light accountability, has a large budget, lot of lawyers that can be turned loose on someone they’re investigating, versus I think the constitutional way, which is congressional investigations being used to investigate and collect information. So Congress has to actually bear the burden, the public burden of investigating a president perhaps for impeachment. It seems to me all of this, what we experienced, I mean, obviously we’re in a period of hyper partisanship, but that’s actually a norm in American history. But it seems to me it’s the way in which we want to sort of squeeze politics into a legal box now that makes us worse.

I think that’s an apt description. And I’ve been a FISA critic going back to when I was a prosecutor, when I happened to be in terrorism cases, which were among the few examples that you get FISA evidence actually being used in court. But I think FISA was a bad idea, driven by good intentions. It’s a reaction to the Watergate and the spying scandals of the 60s and 70s. But it’s a bad idea. I often talk about a decision, Justice Jackson wrote in the early 50s about the propriety of courts getting involved in executive branch intelligence collection. And Jackson makes two points, one of which FISA tries to answer years later. And the other, which I think FISA can’t answer. The first is that there’s nothing about being a lawyer or a judge that makes one expert in intelligence matters. It’s simply beyond the judicial function. It’s not a judicial function, it’s an executive function.

And it’s a classically political function not in the pejorative sense of politics, in the distribution of power sense. So it’s not appropriate for judges who don’t have the institutional competence to involved in this. FISA tries to answer that by opening in one tribunal all of the different surveillance issues that would come up in intelligence collection with the idea being that the judges will develop expertise from handling all these cases. You can argue about how successful that experiment has been. But I think the other critique of Jackson is one that, FISA has no answer to and it can’t be answered. And that is that the most important decisions a body politic makes are the decisions about its security and those decisions ought to be made by the political representatives who are accountable to people whose lives are at stake and that you don’t want to divert them to the unaccountable branch.

I believed he was right then. I believe that’s right now. And what you get with FISA is the judges know that they’re doing really an executive function and they’re tepid about performing it. Do you want to be the judge who … If the people who are responsible for protecting the lives of our citizens come into court and they say that we think al-Qaeda is experimenting with a weapon of mass destruction, that they’re going to explode in a civilian center. Do you want to be the judge to tell them they can’t have their warrant? Of course not. So the pressure is on them to approve. And it gives them a judicial Patina or the sort of gravitas of the court is stamped on the executive activity. We see it in this very investigation where when you call them on what they’ve done with the Steele dossier, which anybody who has had any experience in the Justice Department who looks at these facts and looks at them objectively, says, “What on earth did they think they were doing here?”

What their comeback is, is always that four different judges signed off on me. Four Republican judges signed off on this, and I think it’s a fair question to ask. I hope somebody asks this in Congress who’s in a position to do oversight and do something about it. What was the core thinking when they review these warrants? I’ve read a million warrants, I’ve written a million warrants, and when you look at these, I think you have to ask, what were the judges thinking when they signed off on that? In defense of the judges who looked at this, there was a lot of information these warrants hadn’t seen yet. I don’t think there’s a whole lot in the probable cause section, but we need more disclosure before we can make a final assessment on how they perform.

But I think it’s worth asking, if the FBI came in and said, “We’re not giving you a reason why you should believe the sources of information, who made the observations, the sights, and sounds, and the rest that we’re asking you to rely on for purposes of probable cause. And instead we’re telling you that the person who accumulated this information is credible.” Which is generally beside the point when you’re going to get a warrant. I think it’s worth asking. What made the judges think that was okay?

Richard Reinsch: So I guess the next shoe to drop on this is the internal DOJ report.

Andrew McCarthy: Michael Horowitz is the inspector general. Now, Attorney General Barr initially said his report, I think in fact in April or March, Barr said we might get his report by May. We still haven’t gotten it. My understanding, at least what they say in Washington is that more people came forward and there’s been more testimony for Horowitz to consider. But at least some credible sources say his work is substantially done and they were in the final strokes of writing that report, and we may see it within the next three weeks or so.

Richard Reinsch: Well, Andy McCarthy, we’ll be looking to you for coverage and analysis. We’ve been talking with the author of Ball of Collusion.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 14, 2019 at 09:08:08 am

[…] the investigations of the Trump campaign’s alleged collusion with the Russian government. Dissecting the Trump-Russia Investigations: A Conversation with Andrew McCarthy syndicated from […]

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Dissecting the Trump-Russia Investigations: A Conversation with Andrew McCarthy | Best Legal Services
on September 15, 2019 at 22:42:27 pm

This was perhaps the most informative interview of Andy McCarthy that I have heard so far, and I have listened to most of them. The interviewer stays in the background and asks pointed questions, the answers to which, he listens. The input of the Eastern European intelligence services is completely new to me, for instance. Great interview.

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Michael Reinhard
on October 03, 2019 at 11:14:29 am

Or maybe, just maaaaybe the reason they didn’t follow through on the prosecution of that Russian firm that showed up is that they,...you know....didn’t want to turn over sensitive national security intelligence information to the Russians.

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Andrew F
on March 07, 2020 at 09:30:57 am

Maybe, just maaaaybe they should have realized that if you accuse someone of something in an indictment the prosecutor may have to prove his statements in court. You think?

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Gandydancer

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.