Former assistant U.S. attorney and senior fellow Andrew McCarthy discussed the fallout from the firing of FBI Director James Comey and the appointment of a special counsel with SiriusXM host Alex Marlow on Friday’s
McCarthy said there was little more than a semantic difference between the terms “special counsel” and “special prosecutor,” with the latter dating back to the Watergate scandal.
“What they tried to do after that was really institutionalize it with kind of a constitutional monstrosity that was known as the independent counsel statute, which was an unconstitutional arrangement because it allowed the court to pick a prosecutor, and they put other limitations on executive power,” he recalled.
“The Democrats loved it until Bill Clinton got into its crosshairs, and then they decided they didn’t like it so much anymore, so they let the independent counsel statute lapse in around 1999,” he said. “What we’ve had since then is what’s called ‘special counsel.’ The reason they dropped the word ‘independent’ is to make it clear this lawyer is not independent of the executive branch. It actually answers to the Justice Department and can be fired at will by the president, just like any inferior officer in the executive branch.”
Marlow said the “Comeygate” fallout from the FBI director’s firing has largely obscured the core question of whether Comey was a competent director, and has completely derailed President Trump’s legislative agenda.
“I’ve known Comey for 30 years, so I have a personal relationship with him,” said McCarthy. “I disagree strongly with the way he handled the Hillary Clinton investigation but I kinda think, Alex, that he’s been the same guy all along. It’s the political expediencies and whirlwinds around him that have changed perceptions of him.”
“They loved him in July when he cleared Mrs. Clinton. They hated him in October when he reopened the investigation. He was given Satan status in November when they counted the votes. And now he’s Eliot Ness all over again because he’s pitted against Trump,” he said of the Democrats’ attitude toward Comey.
“To me, he’s the same guy all along. He hasn’t really changed. He does now the same sort of stuff he’s done all along, for good or for ill. What’s changed is whatever is politically expedient to say about him or to use him. That’s what they do,” McCarthy said.
McCarthy spoke highly of special counsel Robert Mueller (pictured), himself a former FBI director, calling him “a very patriotic American.”
“He’s about 72, so he’s about 14, 15 years older than I am. Back in his time, when he got out of Princeton, not everybody who got out of Princeton was going into the Marine Corps, which is what he did,” McCarthy said of Mueller.
“He was a high-ranking and well-thought-of official in the Justice Department, in administrations of both parties. When he was FBI director, who was appointed by Bush, he was well enough regarded that Obama not only kept him on but extended him for two years. In order to extend him for two years, he needed Congress to sign off on that because of the ten-year cap on the FBI director’s term, and he had no problem getting bipartisan support for that,” he said.
“He’s kind of no-nonsense. In some ways he’s the opposite of Comey, in that he’s the antithesis of flash. He’s not one of these guys you’re going to find out in the media, making a lot of press statements about the work that he’s doing,” McCarthy added.
“The thing I like most about it, for this particular investigation – notwithstanding that I’m against having a special counsel to begin with, for reasons we could talk about – if you have to have one, I think having a guy of this kind of record, who’s 72 years old and has already made his mark, he doesn’t need this in order to make a splash or make a name for himself. At least we have a chance, perhaps, that he quietly goes about his business, does it efficiently, gets this thing resolved, and puts it behind us – because I think he’s the kind of guy who probably realizes this is terrible for the country,” McCarthy said.
Marlow raised the contrary view, expressed by author Garrett Graff at Politico, that Mueller and Comey have been “preparing their entire lives” for the moment they could bring down a president and write themselves into the history books. From that perspective, Mueller’s position at the end of a distinguished career might make him more likely to take a shot at eternal fame – or at least President Trump’s adversaries might encourage Mueller to think that way..
“You have to hope that you have a guy who’s strong enough to resist all that,” McCarthy responded. “This is not a guy who has been in love with the media throughout his career. I haven’t detected, over the course of his career, that he gets moved by the press coverage. He’s always seemed to me to be a smart enough guy to know something that maybe Jim Comey had to learn the hard way, which is that whether you’re a hero or a goat often doesn’t have a lot to do with you. It has a lot more to do with whatever agenda the media has, and what they seek to be accomplishing that day. I think he understands that in a way that maybe most people don’t.”
“I’m hoping he won’t be moved by the press coverage. I hope he just does his job,” said McCarthy.
He predicted the appointment of the special counsel would actually help President Trump get back on track.
“It may give him at least a brief period of time where he can do some governing with this off of the front pages,” he noted. “It will never be off the front pages.”
McCarthy suggested it was the recent congressional hearings that distracted the Trump White House, since “they’re always big public events.”
“There will be a lot less action on this now on Capitol Hill, because one thing that congresscritters are usually very sensitive about is, they don’t want to be accused in any way of obstructing, or impeding, or interfering with a Justice Department investigation,” he observed.
“It looks like Mueller has been given a very broad mandate. It’s actually, as a practical matter, with a special counsel it’s hard to rein in their mandate. This one I think is extraordinarily broad, because it’s the kind of a case that you shouldn’t have a prosecutor for in the first place. It’s an intelligence matter, it’s not a criminal matter,” he contended.
“So he’s going to have a wide berth to pursue issues. What that means is that Congress is going to have to back off on a lot of stuff, and maybe you’ll stop having these high-profile hearings. Maybe that will mean Trump can go on his foreign policy trip, which is a big trip starting this weekend, and maybe he gets some movement on health care, and tax reform, and all the other stuff that he committed to do,” McCarthy speculated.
Marlow asked if Mueller’s appointment might reduce the huge number of leaks coming out of the White House.
“It’s certainly within his mandate, Alex, to pursue that,” McCarthy replied. “I actually think one prosecution would do the trick. If they could just get the unmasking of Flynn and find out who gave that name to the ”
“This is Foreign Intelligence Surveillance Act wiretapping. There’s not a lot of people who have access to that information,” he elaborated. “It ought to be possible to figure out who did the unmasking, and from there to go from who did the unmasking to who got access to the information, and try to find the narrow world of people who may have been able to give that to – was it the that got it? No, it was the ”
McCarthy predicted that “only one prosecution along those lines, or even if you couldn’t find the leaker, one aggressive attempt” might be sufficient to bring the flood of leaks under control.
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