I'm Rich Lowry, editor of national view and host for podcast called funnily enough. The editors really gone. The editors I discuss with my colleagues the latest news and national controversies. We cut through the cat get beyond the lies and spin and provide insight, in fact, You're, not gonna, get anywhere else, while having a good time doing it. In this era of folly, myth and hysteria, you owe it yourself to check out the editors. you can find it on. Google play stature tuna in Itunes. We hope to see you soon. Welcome to the Mccarthy report, the pact,

Were I Rich Lowry, ask Annie Mccarthy about the Mahler probe and other legal and national security issues this week the FBI Counter Intelligence, investing and of the president of the United States, the latest on, or testimony and much much more. You listening to a national viewpoint, podcast rules into his pocket, the National Yoda, comrade light, have you, but it be easier few and better for us. If you made as part of your feet, a goop google play sticker tune in or I tunes and please give an Mccarthy and as pod, cast all the dew praise it deserves there's an I tunes review and now without further Ado. I welcome to this podcast through the miracle of sky none other than any Mccarthy. They re Celesyria. I'm good are you. I can't complain those poor plenty to cover a lot of fodder. for you Andy beginning. Was it

Friday night over the weekend, there a book but buster. Maybe you want to put that scared quotes. Report from the New York Times did get a lot of people's attention and general gender engendered alot of controversy that the FBI, after the firing of James CO me had made the president himself a target of a counter intelligence investigation. The weather he's a threat to national security and either a winning or unwitting agents of a foreign power. What should we make it up while my initial reaction to it rich was that it was simply a case of the FBI. Wing overt in

Official files with respect to something that they had been actually been doing covertly for perhaps a year plus before call me, was fired in May of May nice of twenty seventeen. That is, I believe, the Donald Trump was the folks, of the investigation. From the time that there was any angle whatsoever that was connected to the trunk campaign and

I think a they were doing was investigating Trump without acknowledging that they were investigating trump. But this is something that went back to the very beginning when they targeted quarter page in a fire application back in October of twenty sixteen, I think the way the investigation was framed. They would be able to collect as much evidence on Donald Trump as they would have if they had explicitly acknowledge that he was the target and when he was elected in

member of twenty sixteen, the FBI and the Justice Department who had conducted the investigation of Trump knew that within ten weeks, tromp was going to be taking power and therefore would have access to all of the governments intelligence isles, so the original plan here was that, of course, Hillary Clinton was going to win and, of course they were doing the investigation under the auspices of counter intelligence, which is classified so once MRS Clinton one there be no desire. To investigate Trump further, and there are no one would be any the wiser that there has never been this investigation. I think once once Trump One, it was very clear that

This investigation, the existence of it the controversial, I would say, explosive fact that the competent ministration had decided to conduct an investigation of its political opposition, the opposition presidential candidate. That was all going to be publicized, so I think they had two things that had to be done one was they had to lay in motion or get in motion a narrative that show that there was something that was actually worth investigating at the time that they open the investor,

asian? In other words, they were not going to sit idly by and wait for tromp to publicize the fact that this investigation had happened. They spend their time making sure that they had a public narrative out there, that there was a troubling enough connection between Trump and the people around Trump and Russia, that the need for an investigation was justifiable and, I think that's why you had all the leaking of intelligence information and its also. Why present Obama, who had Poohpooh the Russians interference in the election prior to the election, and even a little bit after the election suddenly did one eighty and decided that Russia's interference with the most important thing that had ever happened began.

Issuing sanctions to kick people out of the country, and I think importantly, and when I say, keep people, I look, Countryman meant kick rush, operatives, Ella Country and I think importantly, the other thing that he did was order. The some of the intelligence agencies to do a report on Russia's interference in the election. The kind of Europe that would ordinarily have taken months in the government to do, but that he directed be done while he was still in office. So basically he gave him a few weeks to do it so that he would be in charge at the time it came out would be able to orchestrate its publication

and, of course, the report, as it was done said not only that the agency's believe that Russia had interfered in the election, but they had done so with the specific intent of helping Donald Trump become president that they wanted Trump to win. And I think that was very He too, the narrative, the second thing rich knotted not to go on and on about this, but I think this is critically important. The second thing they wanted to do in those ten weeks and that they had to figure out a way to do was to continue the vested of Donald Trump even after he became president, and I believe They decided that the only way to do that was to be able to tell him, or was to tell him that he was not a suspect in the investigate.

Because I understood that they needed to make sure he understood or make him believe that he was not at risk if he believed that they had gone to him when they reefed him on January. Fifth, on the investigation, if they had said when Mr President Elect, by the way, a wee investigated your campaign and we'd like to continue that investigation and you're one of the subjects of it. They naturally would have had to fear that Trump would have been out raged and would have shut the investigation down there and then and would also have cleaned house at the FBI and the Justice Department. As soon as he got into office, I think what they did instead, was structure the investigation in a way that it was nominally directed at all the people around Trump, so they could continue investigating Trump but at the same time they never

his name on a file never named in the FBI's system of open in cases as somebody there was an open case on he was never someone who was specifically targeted for aid, dropping. We know that they were doing a Pfizer surveillance on corridor page. We don't know who else they were doing Pfizer surveillance on, but I think they structured this rich so that they could have an investigation that would continue to gather information about Donald Trump and yet be able to tell Donald Trump that he was not a suspect that was the way that the investigation was conducted up until call me was fired in May of twenty seventeen. I believe at that point in a kind of a hot headed way: the FBI, the the upper hierarchy of the FBI

I believed that, between the firing of call me and Commies League of the conversation he had with tromp about General Flynn, which was reported as tromp trying to obstruct the investigation of Flynn between those two things, I think that at that point in time, they believed that they finally had a crime which they had never been able to develop against Trump, and at that point I think in their overconfidence about their obstruction theory thought. It was an opportune time to formally opened a case against Trump and that's what they did so on under this theory. When tromp is she rend and angry that call me has told him three times that he under is isn't under investigation at the same time won't, say it publicly and in fact, in testimony

implies other why's that This was just a was right to be Greer smell raw earth think something's not an up up up about this investigation or how come is presenting it yeah. I think that's exactly right, I think, would have then here and the interesting thing about Commies firing rich, is while their three different elements to it. First is trunk didn't need a reason to fire call me as a matter of constitutional law. He could have fired on as as we said before, because he woke up on a Tuesday and he felt like firing. Somebody was he doesn't need a reason The second thing is they put a real out for why he fired call me, namely the rationale that was

in the memorandum prepared by deputy attorney General Rosen Stein, which attributed the firing to essentially two colonies. Mishandling of the Hillary Clinton investigation, And third, the third element you have here is that the story that is put out on the basis. rose and stones memo is not trumps. Reason for firing call me, so I think what Rosen Stein lays out is certainly a justifiable rationale, if you needed one for removing the FBI director, but it wasn't trumps, rationale, Trump, remove the FBI director for two reasons: one because oh me was telling him assuring him privately that he was not a suspect, but unbelievably gave public testimony in March,

She not only acknowledge the existence of the investigation of the trunk campaign as a thread of the investigation of Russia's interference in the elect, he did it in a way that suggested that people would ultimately be charged with crimes. As a result of that, he said as always, we'll do an assessment of whether there was any criminal in that criminal offences, even though we're doing this under Counter Intelligence Authority, so call me testimony. not only that violates normal justice department protocols. Were you don't even acknowledge the existence of an investigation, let alone identify the people who are the subjects of the investigation here, the Trump campaign He also suggested that there would be criminal charges and that that was a routine part of counter intelligence.

allegations- which it is not can't can't or intelligence investigation are not designed to build criminal cases. What what happens is if you happen to find or stumble upon criminal. evidence as you're doing your counter intelligence investigation, you can make a decision. About whether to refer that for prosecution or not, but it's not that assessment that he referred to is not a normal part of counter intelligence investigation, so the way that that was framed the putting aside the fact that it was. It was almost unbelievable to those of us who have been involved in the Justice Department. For that, too, have been said publicly, but the way it was packaged, as it was said publicly, would have led anybody to think that the president was a suspect of the FBI's investigation, and that was precisely the way it was reported at the time. So I believe,

Tromp was outraged. That call me was telling him assuring him privately that he was not a suspect but was making gratuitous public statements. That would suggest anyone that he was a suspect, and I think between that Jane and then the second thing here is everything with tromp is personal, and I believe that tromp, because of this came to to test call me personally and wanted him gone and ultimately that what happened in on May night of twenty seventeen finally removed him. So what's the standards for opening a counter intelligence fight, on someone well Counter intelligence, is always about.

Divining the intentions and the actions of foreign powers, which can be a country that a government, a foreign government, a faction of a foreign government or even of an international terrorist organisation, it's always about divining their attention and trying to block their actions, to the extent that those actions that those actions or threatening to american interests, and particularly american national security In order to identify and identify a particular person, especially who was a? U S, person as a potential operative covert operative of a foreign power, there have to be

indications that the person not only is knowingly acting on behalf of a foreign power, but that those activities clandestine activities may be a violation of federal criminal law and, if that matures into the possibility orator into something that serious enough that they would want to go to the Pfizer court to get a warrant. You would have to have probable cause both that the american person this can be a citizen or permanent residents. Alien that this. U S, person that there's probable clause with the person is acting knowingly on behalf of the foreign power and that that activity is clandestine activity, that is a probable violation of american criminal law.

And one of the standards rich that is stressed again and again in federal law, is that you cannot predicate an investigation on constitutionally protected activity. So even if, for example, somebody were to go out and say you know it's too bad that Al Qaeda blows up buildings, but you know they really have a point here. That's that's a reprehensible attitude to have its a reprehensible statement to make, but it's also a constitutionally protected statement. So if you wanted to target such a person as an operative of Al Qaeda

we have to have better residents than the fact that they made statements that are protected under the first amendment. So in in theory, though, if they had this burgeoning suspicions and case against the president, they could have taken good or fires accordance avail, the present in theory, if they had probable cod, that the president was acting knowingly as an agent of Russia, and they had evidence that he was involved and clandestine activity in just to be clear that the statute talks about what kind of clandestine activity where discussing here. It's it's along the lines of, say you don't terrorist activity or espionage activity in the main, but if they had both problem

cause the president, was knowingly acting on behalf of a foreign power and that the president is the President's clandestine activities or the president's activities rose to the level of of covert clandestine active. on behalf of the foreign power, I suppose theoretically sure they could get a warrant but rich. I think one of the things that are important to stress here, which is something that hasn't How does it really been much discussion? Although we mentioned here a few times, there's one of the critical differences between a criminal investigation and a counter intelligence investigation is that a criminal investigation is conducted in order to melt into making

case on a known or suspected crime on the basis of a factual transaction will you believe crime has been committed and the goal of a criminal investigation is to conduct a judicial proceedings that, as you know, you and dive somebody and you have a criminal proceedings. The purpose of which is to vindicate the rule of law and since its governed by the rule of law. That's why we try to have the I would call it a wall of separation, but but some the relation between the criminal prosecution activity and politics? We don't want, though, White House weighing on who should be indicted. That's not to say the president may not do that, but its very unwise to do that cannot. Intelligence is not conducted, with an eye toward a judicial proceedings, counter intelligence is conducted before the president

that is to say right, the purpose of can or intelligence is to inform the president so that he can conduct his both national security and conduct of foreign policy constitutional responsibilities. So you know, I guess sure academically in theory could they do a counter intelligence investigation, where you got a fine worn on president sure, but it's kind of strange that you would be doing that for the President right say you it yet in theory, you if you would take the surveillance of your target to the target and tell him we have evidence. You had X Y conversations with the Russians and you're the present high station commander. In chief, say you decide what we're supposed to do with this.

material or with so what? What happens is a typically does counter intelligence investigations and go up to the age ie or who decides what to do with it? The you can't go to the fire, a court rich. Unless you have a sign off from the attorney general and a very high ranking, the third, the F B, I usually the director of the deputy director and then and then, if it's something really important, the Asia the present about it and said, sir. You know the Chinese are running this operation or you have installed the surveillance chips in in this technology they ve sent here and what you gonna do about it. That's that's kind of The use of these kind of investigations, the purpose the average, in fact, as you know, the

Presidents in the process is the President's national security adviser as well. I have looked at the statute in a while, but I believe that so I believe that by statute that that you don't you have high ranking national security officials have been chosen by the president and reporting the president in the loop here- and you know, we are familiar with things that that you know intelligence products, that the point that we know the President consume, such as the president's daily breathing, a lot of, or at least some of the information that you would expect to find in the president's daily intelligence, breathing is information that derive from Pfizer surveillance. So any before we move on to our next topic. Just wanna take are accustomed and our plus break and

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inception of all this rich, this in many ways is really a stunning story and its work We know at the moment, as I understand it is based on reporting. John Solomon at the hill now I've seen also today that Molly Hemingway at the Federalist has a peace that actually excerpts parts of wars. Testimony so, even though oars written you know the transcript divorce, testimony is not public, yet it at least has made its way to some journalists and what we learn ridge is that from a time approximately two months before the FBI and the Obama Justice Department went to the fire a to get the warrant on corridor pay. They knew on the basis,

the brutal war, who is a high ranking Justice Department official on the basis of him telling both high ranking people at the FBI and high ranking people at the Justice Department, They knew that the information that was being developed by Christopher Steel the former british spy was part of a Clinton campaign, opposition opposition research project. That steel was working on in collaboration with oars, wife and glens. Simpson fusion, GPS, which basically was working for the Clinton it the Clinton campaign. The Hillary Clinton campaign after having been retained for that purpose by the lawyers for that campaign, so they knew two months before they went to the fire, a court.

This was clearly kept Clinton campaign information and they also knew or says he testifies that he told them this. That steel was desperate, that Donald Trump be debated, that he not become president of the United States. This is important rich, because none of this was disclosed to devise a court defies. The court was not told that this in nation was generated by trumps opponent in the in what was then the upcoming election. Remember the first five warrants about three weeks before election day and secondly, to the extent that the the bureau talked about and the and the Justice Department talked about the potential bias of steel, they said that they were aware of no derogatory information in the meantime,

back to the matter. Is they had immense reason to disclose the court that he was highly biased against Trump and I would point out just as a matter of framing this- that, as I have said many times, the whole idea of relying on steals credibility for purposes of this file? A warrant was outrageous. because steel was not the source of a single fact that the court will be asked to rely on for purposes of probable cause. He was the person who amassed hearsay information from a bunch of unidentified, often second and third hand sources. He himself was not a source of the information. He was more in the position of a case agent who aggregates information so, to my mind, they should never have been relying on him in the first place. But if you

going to rely on him, a special under circumstances when he himself is so remote from the activities that he claims happen in these very often sensational allegations. Then you have to be straight with the court about exactly who is working for what is biases are how he had how he comes to have information. We now know not only that they didn't they weren't straight with the court on this, for example, they said things like guinea having a footnote, were they this long explanation and then that it says that the FBI speculates that there may be political motivation. They didn't need to speculate. They knew full well who exactly who he was working for but the other thing we know is that you, removed from the investigation for lying to the FBI, about his press contacts and even though they can

and to rely on his information as they got this warrant renewed again and again, it was apparently never disclose to the court that he had lied to the agency. Did they did disclosed that he was out of the investor nation, but they didn't disclosed that he lied, and that brings us to the next which was he wasn't actually out of the investigation either because it turns out that even after they terminated him, he continued. Give information to Bruce or who continued to pass. That along- the FBI, so they wish taking information from him We ve even learned in the last few days that part of what, with what the F b I did in addition to reopen into, in addition to formally opening a case against President Trump after call me was fired, was apparently Mackay had the FBI Mackay within the deputy director of the FBI and the active,

erected once call me, was fired that pay apparently had the FBI. Somebody at the FBI reach out to steal, with an eye to trying to recruit him back into the investigation. So we have all that stuff going on behind the scenes while defies accord is not being told about any of it. Now. How does this interact with? We talked about it a little bit last week the obstruction indictment of Natalia Vessel skier, but I think the interesting thing about that is that vessel net skier has been indicted for obstruction of justice on a theory that sheep provided to the court, a declaration that

ports to present findings by the russian government that exonerate the people that she was representing in the but this litigation that was brought by the southern district of New York. Those clients were the cats of families that radical a business called pressures on, but through our without going into the complexities of the litigation throughout purposes. Very simply: vessel nets. Gaia said that she had this information from the russian government that these individuals were not guilty or not, but not involved in the fraud that was key to the southern districts prosecution and she presented that as if it were just a straight up objective

piece of reporting from the russian government. It turns out that she in fact collaborated with the russian government's lawyer or the russian government's prosecutor in order to put together this report, which was then presented to the court as if it were just a straight up russian government document that Natalia Vessel nets Gaia herself, it had nothing to do with an important. For. I dont really see that the these southern district of New York's theory of prosecution is very different from what the F b I did in connection with the Pfizer Courts or the FBI, goes to the Pfizer court with these allegations and they don't alert, defies accord that the allegations actually come from the political opposition. The the opponents in the election of Donald Trump, who.

de the basically the subject of the information that the FBI is bringing to the court. The the FBI says in the application that day, leave, not only page, but that other people connected to the Trump campaign are collaborating with Russia, in a cyber espionage conspiracy to undermine the election day may that allegation, and yet they don't tell the court that this This allegation, which is based on information that's been generated by an opposition research project from the opposition candidate, MRS Clinton, so I just you know, is if the government is going to bring these kinds of obstruction cases. I think that's it's fine. No one should deceive accord, but every

body needs to be whole, held to the same standard of being straight with the tribunal, and I do not, for the life of me, understand how the FBI and the Justice Department can defend what they held back from the bicycle I just I just don't understand it so, and you one other thing I wanna hit before a girl a. What did you make of bill bars just money? I was unable to watch it carefully, but when I dipped in and out of it, just every single answer seem to underline the point you had made when his first appointed that, just as this is an example, free choice for this. As someone who is deeply experienced and knowledgeable and wise about these matters,

think rich that his testimony really shown that he's very, very familiar with the Justice Department, how it works, how it should work, He is somebody who is kept up to speed on not only the development of the Justice Department that you would expect, but recent developments like criminal justice reform, which he had some thoughts about. I think he very deftly defended the memorandum that he had provided to the deputy attorney general. I was in Stein about the reported obstruction theory of Mister Waller. The special council thinking he very convincingly

explained that he was not in any way undermining the investigation. He, in fact that it was an important investigation. He thinks highly of mauler. He thinks it's critical that we get to the eight a full answer and get to the bottom of Russia's interference in the twenty sixteen election and what he was simply saying- and I continue to think he was correct about this- is that you cannot decide a president for obstruction on the basis of lawful exercises of his constitutional prerogatives under article two things like firing, subordinate officials or if he issued partisan and the like, a bar is very clear that a president certainly can be cited for obstruction. He was intimately familiar with the Clinton and Nixon

proceedings and the theory of obstruction that was followed in those cases and what he simply pointed out is that, if you're going to have an obstruction against the present an obstruction investigation, it has to be based on corrupt acts like destroying evidence or paying off witnesses. It can't be based on lawful acts that a prosecutor suspects may have been undertaken for improper motives, but bar is clear that if that happens, that's not the end of them our Congress, if Congress, thanks to President is abusing its powers, Congress always has the ability to impeach the president. But what he's talking about what Boris talking about is what the Justice Department can do, and I think you, pretty not only on this, but on things across the board expertly instructed. While I instructed the wrong word, but I think he he expertly related

to the senators on the committee, exactly what the Justice Department is permitted to do and what it should be thinking about when it does it, in a whole array of areas- and I think he did it well enough, but they didn't want him back to testify a second day I imagine that he may even get some democratic support. Unfortunately, word were not in a time where he'd get a hundred to nothing support as he should get, but but he'll probably pick up some democratic votes so to other little things to following up on his testimony before we go. What did you make the effort to bring em up on his answer a couple times, including an exchange with Camelot Harris where he was asked? If the ethics office says you should retreat, refuse yourself or gives you some guidance? Will you make a committee

to follow that advice, and he said now yet what I think what people need to understand. As he didn't say, no, he wouldn't listen to them. He said no, he wouldn't let them run the Justice Department. The fact of the matter is the attorney general runs the Justice Department Office of legal counsel Indians are not binding on the attorney general, but he almost invariably or she'll could be built without male and female. A turn generally me to suggest otherwise, but the iter, in general, is not bound to follow oil. See guidance the attorney general is not bound to follow guidance from the ethics officers in very play. It seems to me the iter any general does follow the guidance, but the attorney

general runs the Justice Department in what you are essentially asking bar. If you ask em, you know, if the ethics officers tell you that you must do acts, do you commit that your father that that's like saying the ethics offices are in charge of the Justice Department and no one gets to second guess them? Well, what if they're wrong you know bars, are pretty able lawyer before he was attorney general and push forty one administration. He was the head of the Office of legal counsel and a lot of these issues about refusal and other things that come up and ethics investigations or not black and white matters there their issues as to which there can be differences of opinion between reasonable people so I think the most responsible thing, any attorney general could do is say, look I'm going

to be the one who runs the Justice Department, and I will certainly give respectful attention to the people who are expert and who advise me. But ultimately it's my call and then finally, how about this? This question of how the Mulder report we'll be handled. You have people saying well we're not gonna see, based on what Mr Bar sad, that a mother, a poor, we're gonna, see a bar report kind of a bar version of the Mulder report. And why should anyone have any confidence in that. Well, to begin with, that's what the regulation say rich, I mean the regulation say that the special council gives the report to the attorney general and then the attorney general decides how much of the report is made public to Congress and how to disclose that? That's that's up to the attorney general, so that

really what the structure of the regulations provides for now. What bar said in his testimony is that he would like, as much of the report, to be to be public as possible, given what the legal constraints or on the Justice Department and, as we pointed out any number of times, the DE justice Portman normally lays out the evidence. against someone only when that person is charged. If somebody is not charged it, it's not only not dawn ordinarily, that you would lay out the evidence begin said person in fact, as we mentioned at the beginning of the body today when call me was fired, one James call me was fired and may twenty seventeen as the FBI, director De Justice, deplore,

meant rationale for removing him was that he went public on the other It's against MRS Clinton, even though she was not charged with a crime. So I it it's still seems to me that there is a big preliminary question here about exactly we'll be in mowers report, because if it turns out that he simply going to conclude that there is insufficient evidence to prosecute President tromp, then there's a big question as to whether he ought to lay out that evidence at all as much as the Democrats, especially those running the of the committees in the house. Now Wanna see that information. I think the political reasons is obviously understandable that they should want a full disclosure of everything Mahler found, but Mauler prosecutor is not council for Impeachment Committee and normally prosecutors. Do not speak about the Evelyn

against on charge. People so presuming President Tromp is not going to be charge, and we don't know that for a fact, but it seems to be highly likely. There's a big issue about whether We should find out what the evidences any investigation against him and you have any best guess on when we would report would be. is stolen. Mahler would reach an end other some speculation awhile ago there will be in February. Do you have any best guess: yeah I've always thought rich that had it he certainly closing down with does a lot of size. That is closing the investigation down that's drawing to an end, but I think I've been thinking- and this is this- is just speculation on my part, but I think more, like the next three months than the next three. I really think you still got a grand jury open. I think you may want to wait until bar

His attorney general, which would would would probably be optimal in a lot of ways, I don't mean because bar wool will affect the content of the real what's so much. What I believe is that, if I dont think bar wants to make the report to Whittaker under circumstances where women whose legitimacy as the acting attorney general has been so called into question by Democrats, even if they are wrong- and I think they are- it still creates an issue, and I think you can obviate that issue by waiting it. I think, within the next three to four weeks bar will be confirmed and will be in place at the Justice Department, and it would be much more opportune, then, thinking about the final report- ok! Well, that's all the time we have been listening to a national you, podcast podcast has been produced by the incomparable. Sarah.

Jody thanks. I want for listening and thank you, Annie, Mccarthy, thanks so much