Never Trumper Andrew McCarthy Weighs In On Russiagate
Conservative pundit and former federal prosecutor Andrew McCarthy is warning Republicans that nominating Donald Trump could backfire in a big way in 2024.
“Trump doesn’t have a prayer of being elected president again,” McCarthy wrote in The National Review in a column posted online before the former president was hit with new indictments connected to the Capitol riot on Jan. 6, 2021.
. . . Despite that, polls show Trump running neck-and-neck with President Joe Biden.
McCarthy said Democrats hope those polls lure GOP voters into nominating Trump.
But he warned that Trump would face some difficult math next year, estimating that about a quarter of Republican voters won’t support him no matter what.
With that sort of solid track record of being wrong, I'm surprised that anyone finds his takes reassuring, especially in light of how, over the past year or two, previously skeptical figures like Alan Dershowitz and Bill Maher have come to see Trump much more favorably. But McCarthy is still as bearish on Trump as ever. Here's his take on the likelihood that the Justice Department's efforts to hold the key figures in Russiagate accountable will succeed:
In July 2016, Obama was briefed by then-CIA Director John Brennan on the Clinton campaign’s strategy to “vilify” Trump by accusing him of collaborating with Putin. Obama’s Justice Department and the FBI obtained Foreign Intelligence Surveillance Court (FISC) warrants to monitor the Trump campaign (through its former adviser, Carter Page) by representing to the FISC under oath that Trump’s campaign was in “a well-developed conspiracy of co-operation” with Putin’s regime.
. . . No sensible person should doubt that Obama was complicit up to his neck in the political smear that Trump collaborated with Russia. But as observed in the damning 306-page report by John Durham, the special counsel appointed by the first Trump Justice Department to probe the origins of Russiagate, political smears and appalling misjudgments are not violations of the criminal law, absent some statutory federal offense. If there were a criminal offense that fit, Gabbard and Trump would cite it, rather than chanting “treason” — the heinous crime of levying war against the United States or giving aid and comfort to America’s wartime enemies, which clearly does not apply to this situation.
So his argument is basically that, notwithstanding Obama, Brennan, Clapper, and Comey engaged in general skulduggery, skulduggery in and of itself is not a crime, and without a specific statutory violation, they aren't going to get a conviction. Beyond that, when Gabbard and by extension Trump refer to "treason", they're ignoring the constitutional definition in Article III, Section 3, Clause 1. There are two basic problems with this argument.The first is that, even though McCarthy is an attorney, and indeed a former Assistant US Attorney, his ability to predict the outcomes of cases involving Trump hasn't been good. According to Wikipedia,
During Donald Trump's presidency, McCarthy defended Trump before his first impeachment, but before his second impeachment, wrote that he had "committed an impeachable offense."
After the January 6, 2021 attack on the United States Capitol, McCarthy wrote that he now considered Trump's presidency "indelibly stained" and wrote, "I do think the president has committed an impeachable offense, making a reckless speech that incited a throng on the mall, which foreseeably included an insurrectionist mob." However, he also believed that Congress mishandled the impeachment both in its timing and charge.
In 2023, McCarthy wrote in National Review about Trump's federal indictment for allegedly mishandling classified documents, saying that earlier failures to prosecute Hillary Clinton did not mean that Trump is "owed a pass": "I don't believe that Trump's lawyers, who were trying to help him, would testify—as they have very reluctantly testified—that he tried to get them to destroy evidence and obstruct justice, unless he really did try to get them to destroy evidence and obstruct justice."
Nobody with a brain seriously believes at this point that Trump 45's presidency was "indelibly stained", nor that anything he did on January 6, 2021 was an "impeachable offense". The federal classified documents case against Trump was dismissed in 2024 on the basis that Jack Smith's appointment as special prosecutor was unconstitutional, something McCarthy seems to have missed in his own review of the case.Second, while McCarthy cites the constitutional definition of treason, levying war against the United States or giving aid and comfort to its enemies, outside this context, it means any betrayal of trust. If either Gabbard or Trump, neither of whom is an attorney, uses the word, they're using it in its common-language context. This is the same error Trump's critics have made in objecting to Trump's claim that the 2020 election was "stolen"; the word is frequently used in the context of "she stole the scene" or "he stole her heart".
And the targets of the new Justice Department Russiagate strike force, like Peter Strzok, seem to be taking the threat more seriously than McCarthy does.
Former FBI agent Peter Strzok deleted all of his posts on the social media site X Monday.
. . . The deletion of the posts comes following Gabbard’s referral of the documents to the Justice Department for criminal investigation, with former FBI Director James Comey and former CIA Director John Brennan among those named as potential targets of a Justice Department “strike force.”
My wife, a retired attorney, asked, "Why'd it take him so long?" That may reflect Strzok's poor judgment, but it also suggests that he's belatedly taking his situation seriously and has hired a federal criminal defense attorney. Jonathan Turley, a savvy Washington legal analyst, has referred to John Brennan as "like a 30 point buck out in the open". These cases aren't trivial, whatever McCarthy may insist, and his own track record in saying what's important isn't good.Observers are beginning to conclude that what's being investigated is a conspiracy that began, on one hand, as an attempt to minimize or conceal criminal behavior related to Hillary Clinton's off-site e-mail server, while on the other promoting a false story involving Trump and prostitutes in a Moscow hotel room. The Steele dossier with these allegations appears to have been used to secure FISA warrants to allow the FBI to spy on Trump's 20l6 campaign.
McCarthy acknowledges this in the link above by noting "the FBI obtained Foreign Intelligence Surveillance Court (FISC) warrants to monitor the Trump campaign . . . by representing to the FISC under oath that Trump’s campaign was in 'a well-developed conspiracy of co-operation' with Putin’s regime". So McCarthy implies, but doesn't otherwise mention, that this means the FBI may well have committed perjury:
Under federal law (18 USC § 1621), for example, the elements of the crime of perjury include:
- Having taken an oath before any competent tribunal (court), officer, or person;
- In any case where U.S. law authorizes an oath for truthful testimony, declaration, deposition, or certification;
- Willfully and contrary to such oath;
- States or subscribes to any material matter which they do not believe to be true
Federal law also outlaws the subornation of perjury, or the procuring of perjury by another person.
For now, it appears there's quite a bit of evidence that Comey and those who reported to him at the FBI knew the Steele dossier was a fabrication, but they swore to the FISA cort that it was true. McCarthy argues that "political smears and appalling misjudgments are not violations of the criminal law", but he omits the very real possibility that perjury before the FISA court, and in other situations like Congressional testimony, is in fact a crime.He does give a hint at the potential defenses by Comey, Clapper, Brennan, and others, that on one hand, they just made really, really dumb mistakes, and on the other, they were just follwing orders from Obama, who is immune, although after January 20, 2017, Obama had no authority. This all will come out in the wash.
But I think it's a major error to discount what seems to be the developing Justice Department case.
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