justice

Democrats, media figures, and even some Republicans suggest President Trump’s alleged request for former FBI Director James Comey to end an investigation into fired National Security Adviser Michael Flynn amounts to obstruction of justice, but a former federal prosecutor says what we know thus far does not rise to that level and is no different than Barack Obama’s efforts to exonerate Hillary Clinton.

Andrew C. McCarthy led the prosecution of Sheikh Omar Abdel Rahman and others for the 1993 World Trade Center bombing and plots to blow up other New York City landmarks.  In his latest column for National Review, McCarthy says those purporting outrage now said virtually nothing when President Obama arguably took more egregious actions with respect to Clinton.

“In a few ways, the Obama situation with Hillary Clinton is worse than what we’ve heard about here.  What Obama did was make a very public statement, which is obviously a statement to his subordinates as well as everyone else, that he didn’t want Mrs. Clinton prosecuted and didn’t think she should be prosecuted,” said McCarthy in an interview discussing his column.

“He articulated a legal theory for why she shouldn’t be prosecuted, this claim that she wasn’t trying to harm the United States and that her classified emails, while they exhibited carelessness on her part, were really a small part of a much larger overall picture and had been exaggerated out of proportion,” said McCarthy.

He says that same logic was used again a few months later.

“Lo and behold three months later, when Director Comey announced his view that Mrs. Clinton shouldn’t be prosecuted, he adopted precisely the legal reasoning Obama had announced three months before,” said McCarthy.

McCarthy’s analysis follows the breathless reporting of an alleged Comey memo following a February 14 meeting with Trump at the White House.  According to the memo, Trump cleared the room before engaging Comey on the Flynn investigation.

Trump reportedly told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”  M

McCarthy says that tidbit alone is a far cry from constituting obstruction of justice.

“I don’t think we’re close to being there yet because even though I am sure that then-Director Comey must have found the conversation with President Trump to be awkward and inappropriate, I don’t think there’s anything corrupt about it,” said McCarthy.

First of all, McCarthy says it’s hard to draw any sweeping conclusions from a few scraps of a conversation.

“The most important thing about obstruction of justice is context.  We don’t really have context here.  We have one statement that’s mined out of what must be a larger memo,” said McCarthy.

He says there needs to be concrete evidence of corruption to pursue obstruction of justice allegations.

“Corruption is the heart of obstruction of justice.  The person has to act intentionally, knowing that what he’s doing is wrong, and intend to subvert the truth-seeking process,” said McCarthy.

Trump critics suggest the subsequent firing of Comey after the director refused to back off the Flynn case is evidence of obstruction.  McCarthy says you need a lot more than that.

“I think the corruption that would be involved would be if you were to pressure the FBI to drop an investigation, rig that result and then use it to suggest the person had been exonerated when you knew that you had actually rigged the result and not allowed the FBI to do an investigation,” said McCarthy.

Furthermore, McCarthy says Comey’s actions over the subsequent three months shows he did not consider Trump’s comments as an attempt to obstruct justice.

“Obviously, Comey, who is a highly-decorated and highly-experienced former prosecutor and FBI director and who well knows what obstruction of justice is, he clearly didn’t feel like he’d been obstructed.  If he had, I’m certain he would have resigned and then gone up and down the chain of command and perhaps to Congress to report why he was resigning,” said McCarthy.

“Instead, he ended the conversation.  He did write the memo.  The investigation of Flynn continues.  In fact, we now here that there’s a grand jury in Virginia, so he must not have perceived that he’d been obstructed.  Obviously they weren’t obstructed because they’re proceeding with the investigation,” said McCarthy.

For the same reason, McCarthy says the wringing of hands and panting for impeachment inside the beltway is greatly overblown.

“Democrats will say that Trump fired Flynn because of the Flynn investigation and because of the fact that it hadn’t been closed down and that he did it as a signal to the FBI and the Justice Department that he doesn’t want Flynn proceeded against.  That’ll be their interpretation of it,” said McCarthy.

“The reason I think that’s a loser, even though I understand why they’re making the argument, is that the investigation is continuing,” said McCarthy.

“There’s a lot more to the relationship between the president and the FBI director than a single criminal case, even against a one-time aide of Trump’s in the administration.  There could be a million reasons why the president might want to fire the FBI director,” said McCarthy.

McCarthy says Democrats have been trying to bring down Trump since the day after the election, and perpetual outrage is often an effective way of preventing much from getting accomplished.

“In the long term, what they’re looking at is trying to make it impossible for him to govern so the parts of his agenda, to the extent that they object to them, can’t be implemented and also make it look like his government – and he’s helping them with this by the way – is so chaotic and so in over its head that it helps their electoral prospects in 2018 and 2020,” said McCarthy.

While McCarthy notes that Republicans have a long history of not defending their party’s president during times of controversy, at least compared to Democrats, he sees no actual traction for impeachment despite the growing demands from the left.

“I see the fervor (among Democrats) to want to get a president impeached, but I don’t see any grounds for doing it.  Given what Republican numbers are at the moment, I don’t see any prospect of it,” said McCarthy.

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