prosecution

Former federal prosecutor Andrew C. McCarthy says there is still no discernible evidence of any conspiracy between Russia and the Trump campaign, and he says special counsel Robert Mueller is effectively on a “fishing expedition” to find criminal behavior of some kind.

McCarthy is also explaining what a Trump attorney likely meant when suggesting the president cannot obstruct justice.

Mueller, a former FBI director, was originally tasked with an open-ended counterintelligence investigation to determine whether any outside forces interfered with the 2016 presidential campaign.  However, Mueller’s mandate from Deputy Attorney General Rod Rosenstein came with no formal limits.

McCarthy says Mueller’s task was the opposite of how prosecutions normally function.

“The usual thing in the United States is that there’s a crime so we assign a prosecutor.  Here, there’s no crime.  We assign a prosecutor .  We tell him to go find a crime,” said McCarthy.

And thus far, McCarthy says Mueller hasn’t found what he was hired to find.

“He’s gone about his investigation as a kind of broad fishing expedition within those very broad parameters.  If they had a crime that was the predicate for this investigation, it would have been conducted a different way.  But he wasn’t directed to investigate a crime.  He was given this very broad mandate,” said McCarthy.

The investigation is receiving enormous coverage in the wake of Mueller indicting former National Security Adviser Michael Flynn for making false statements to the FBI in January.

McCarthy says many people assume this is a sign that bigger charges are coming for the likes of Jared Kushner, Donald Trump, Jr., and possibly even the president himself for colluding with Russia.  He says that assumption is based on a flawed understanding of law.

“Collusion is kind of a loaded word.  All it means is concerted activity.  What prosecutors care about is conspiracy, not collusion.  Conspiracy is an agreement to violate a particular federal law.  In this case, the law that they’re most likely talking about is some form of espionage by the Russians targeting the 2016 election,” said McCarthy.

“I never thought they had a case on that.  I haven’t seen anything to suggest it.  What we’ve seen with the three sets of charges is quite the opposite,” said McCarthy.

He says from Paul Manafort and Rick Gates to George Papadopoulos and now Michael Flynn, there is still not a single charge related to the 2016 election.

“They’ve had charges against Manafort and an associate, Rick Gates, that had nothing to do with the 2016 election, and these two guys, Flynn and George Papadopoulos, who pleaded out to process crimes of lying to the FBI, charges not having anything to do with supposed collusion in the Russian effort against the 2016 election,” said McCarthy.

There were Trump campaign contacts with Russia, but McCarthy says the lack of any related charges is telling.  He says Papadopoulos only being charged with making false statements likely means there is no conspiracy case.

“With [the Papadopoulos indictment], Mueller files a 14-page statement of facts explaining the offense, and collusion pours off every page of it.  You have a meeting with people who say they are agents of the Russian government.  He meets with someone who represents herself, apparently falsely, to be Putin’s niece.  They’re talking about setting up meetings with the Russian regime, possibly setting up meetings between Trump and Putin themselves,” said McCarthy.

“Yet, after all of that, he pleads guilty to one count of lying to the FBI about when his first meeting with a Russian official was.  The case against him, even though it’s immersed in collusion, doesn’t have anything to do with collusion in the 2016 election.  That’s the sort of thing that’s led me to believe there’s no collusion case,” said McCarthy.

The Mueller prosecutors, however, are now coming under scrutiny.  Peter Strzok was tossed from the team after anti-Trump statements were made public.  Andrew Weissman is still on board despite a recently uncovered email in which Weissman praises then-Acting Attorney General Sally Yates for refusing to enforce President Trump’s first travel ban.

McCarthy says we should not be shocked that federal employees are politically liberal.  He says that alone is not evidence of corruption, at least in this investigation.

“I need to see a lot more about Strzok before I jump to the conclusion that he let his political opinions – we all have them – interfere with the way he enforced the law.  But I think there are a lot of very questionable judgment calls that were made in the Hillary Clinton case,” said McCarthy.

Among those concerns are reports that Strzok changed former FBI Director James Comey’s language, so that Sec. Clinton was not labeled “grossly negligent” in the way she handled her emails as well as the FBI’s decision not to charge Clinton aides Cheryl Mills and Huma Abedin for making false statements to the FBI during that probe.

As for the Russia investigation, other political and legal experts disagree with the argument that there is no whiff of a criminal conspiracy.  They specifically point to the June 2016 meeting involving Trump, Jr. and Manafort and Russians who said they represented the Russian government and promised damaging information on Hillary Clinton.

Even though no damaging information was turned over, the critics contend the Trump’s campaign’s willingness to engage with the Russians that way proves it was willing and eager to go down that path.

McCarthy says that sort of activity might be unseemly but it’s not criminal.

“What a prosecutor is interested in is not collusion.  A prosecutor is interested in conspiracy.  That means you have to have an agreement to violate a law, and there’s no against taking information from the Russians about your political opponents

“Is it something you should do?  No.  Is it something we should endorse?  No.  But the narrow question for Mueller as a prosecutor is not whether it’s unsavory behavior.  It’s whether it’s criminal behavior,” said McCarthy.

Democrats and the media are also actively wondering whether a recent Trump tweet suggests he knew about Flynn’s lies to the FBI before he fired Comey in May.  Some believe it amounts to obstruction of justice, leading Trump attorney John Dowd to declare that the president cannot obstruct justice.

“The ‘President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,'” Dowd told Axios.

McCarthy says on one hand it it “absurd” to claim a president cannot obstruct justice, but he says the president can legally derail virtually any investigation he wants, including deciding who should be investigated and which executive branch officials ought to be fired.

He says the issue get complicated when a president exercises those powers for what is perceived to be a corrupt purpose.  But even then, McCarthy says the proper recourse is impeachment, not criminal prosecution, because a sitting president can always make it go away.

“Practically speaking, the president holds all of the Trump cards against being indicted.  He can pardon himself and everybody else, which stops the investigation in its tracks.  He can order the investigation to be dropped.  He can fire the prosecutor.  He can do all sorts of things to prevent him from ever being indicted,” said McCarthy.