A former federal prosecutor says Special Counsel Robert Mueller’s threat to subpoena President Trump shows a Justice Department in need of “adult supervision” and says the Mueller questions leaked to the media show that Mueller still hasn’t found a crime to prosecute.

Mueller’s prosecutors and Trump lawyers have been negotiating the terms of a voluntary interview, but Mueller is now threatening a subpoena if Trump does not commit to the session.

Andrew C. McCarthy served as a prosecutor in the Southern District of New York and led the case against Sheik Omar Abdel Rahman and others for the 1993 World Trade Center bombing and plots against other New York City landmarks.

McCarthy says the subpoena threat shows this process is off the rails.

“We’re not having adult supervision in the Justice Department,” said McCarthy, who asserts that proper oversight would not allow the subpoena of lesser figures without clear evidence of a crime.

“You’d have to go through hoops at the Justice Department for permission to serve (a subpoena to), say, a journalist.

“With a president, the prosecutor should not be permitted to even ask for an interview, much less coerce the appearance of the president with a subpoena unless he can show there is a serious crime that Trump is implicated in and that can’t be accessed through any other source, like Nixon with the tapes,” said McCarthy.

“If you don’t have that kind of a scenario, then you as a prosecutor don’t have any business asking the president to answer some questions because you think it would be interesting.  The Justice Department is supposed to be the body that steps in and makes sure that kind of stuff doesn’t happen,” said McCarthy.

McCarthy says Deputy Attorney General Rod Rosenstein established Mueller as special counsel “in a panic” after the Trump administration “completely botched” the firing of FBI Director James Comey by offering conflicting reasons for his termination.

Nonetheless, DOJ guidelines are clear on this matter.

“The appointment was not in compliance with Justice Department regulations for appointing a special counsel because you’re supposed to have a basis for a criminal investigation, which they didn’t.  They assigned Mueller a counterintelligence investigation

“But [Rosenstein] also, according to published reports, committed to congressional Democrats that Mueller would have carte blanche to take the investigation wherever Mueller decided the facts went,” said McCarthy.

So what is Trump to do if Mueller does subpoena his testimony?  McCarthy says there are strong grounds for executive privilege.

“This is a prosecutor.  He doesn’t work for Congress.  He’s an inferior executive official who has a very narrow license to ask questions and conduct investigations in furtherance of probing a crime.  And if you don’t have a crime, he doesn’t get to ask superior executive officials a bunch of questions,” said McCarthy, likening a Mueller subpoena to a subordinate military officer making demands of a superior officer.

McCarthy says it’s also clear to him that Mueller still hasn’t found a crime based on the questions Mueller reportedly passed along to Trump.  Instead, he sees Mueller hunting for a motivation to obstruct justice in Trump’s actions to fire Comey, etc.

McCarthy says a sitting president can be targeted if he commits an illegal act but cannot be probed for why he committed a legal act.

However, the strongest defense for Trump against any allegations of obstruction is that no investigations have been obstructed.

“If you look at what happened here, whether you’re thinking about him weighing in on the (Michael) Flynn case or him firing Comey, there was no obstruction whatsoever.  The Russia investigation has never been sidetracked.  It continued apace.

“After Trump weighed in with Comey on the merits of prosecuting Flynn, Comey has testified that the FBI ignored what the president said.  We now know that Mueller picked up the investigation, ran with it and ultimately prosecuted and convicted Flynn.  So there was no obstruction here,” said McCarthy.

McCarthy says there is damage to the presidency from Mueller hunting down sinister motives by Trump.

“It’s a frivolous basis to conduct an investigation under circumstances where it really hurts the country to have the president under the cloud of suspicion,” said McCarthy.

 

 

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