Andy McCarthy at Horowitz's Restoration Weekend

From the Clinton emails to the Mueller investigation, now what?

Editor's note: Below are the video and transcript of remarks given by Andy McCarthy at the David Horowitz Freedom Center's 2018 Restoration Weekend. The event was held Nov. 15th-18th at the Breakers Hotel in Palm Beach, Florida.


Well, thank you all.  Thank you very much.  This is why Joe diGenova, Victoria Toensing, and Christian Adams should be attorney general.  I get I don't need that.  And I started jotting down some notes of Pat Caddell's introduction of Milo in the Rock and Roll Hall of Fame.  I guess that's not necessary either.

It's a great privilege to be here and to see so many old friends, and I'd love to be able to begin with something uplifting, but I feel like instead what I need to begin with is a confession.  I have to confess that we are in a situation and really the one who's in the vortex of it is President Trump, but it is a situation that I not only thought we would never be in, but probably about 20 years ago, I guaranteed that we'd never be in it.

It's long ago and far away now, but how many people here remember the wall?  Remember around the 9/11 Commission?  A few people do.  It goes to show how much we date ourselves because actually years ago at this very retreat, that was actually a pretty big topic because at the time what we were, the roiling controversy we were talking about was surveillance.  In that regard, I guess some things never change, but in the post 9/11 era, we were trying to analyze what it is that allowed an attack of that magnitude to happen, and a lot of us who were on the front lines of it and who were in the government at the time and the Justice Department, as I was for 20 years, could not get away from the fact that what had caused the inability of the government to understand the threat that we were facing was a bunch of self-imposed regulations that the Justice Department had put in in around the mid‑1990s. 

It was actually after I prosecuted the Blind Sheikh after the first World Trade Center attack in 1993, and after that, they began to be afraid in the Clinton Justice Department of a hypothetical problem.  They worried that the government would take its counterintelligence powers and use them pretextually in order to conduct a criminal investigation when there was no evidence of a crime.  When there was no rational basis to believe that a crime had occurred, a lot of us took great umbrage at that, and I was one of them.  I was one of the people there saying that would never happen, and the reason I was so confident that it would never happen was very simple.  The adults in the Justice Department and the FBI, that is, the high-ranking officials whose job it was to manage, to supervise, to impose order on the investigations that are done throughout the country would never allow it to happen.  If there were some rogue agent who tried to carry that out, who tried to use national security powers as a pretext to conduct a criminal investigation, there would be somebody in the upper ranks of the FBI and somebody even higher in the upper ranks of the Justice Department to tell them no.

There's one thing I didn't think about and that is what happens when the adults decide to take over the investigation themselves.  Who is it that can tell them no?  And I think what we're finding out is that the answer is no one, and the story of what has happened in this country in connection with 2016 elections, a continuum that goes from Hillary Clinton email Investigation all the way through what we're dealing with today, the Mueller Investigation, which is not only going on and on, but we hear may even have new indictments to file this week.  That is a story of what happens when the FBI and the Justice Department, for our own good of course, decide that they know more than we do who should be running the country, and they decide that their take on that is so important that they need to do what they never otherwise do, which is take over investigations at the headquarters level.

One of the things that has almost never been talked about since we've been dealing with this controversy going back to the beginning of 2016 is how this happened.  Why this happened.  It's natural that you don't really have a chance to look back and say why when you're still in the middle of it, but I have a suggestion for why it happened.  The FBI and the Justice Department like to have investigations run at the field level.  What that means is, there's 94 districts in the United States.  Every state has at least one district.  A number of the bigger states have multiple districts, but there's about 94 federal districts throughout the country, and the way that we work in the Justice Department and the FBI is we like to have investigations run and investigated in the place where the crime occurs.  Now one of the reasons for that is not only common sense, it's constitutional.  You're entitled to have a trial if you're accused of a crime in the place where it's alleged that you committed the crime. 

That's where the jury's drawn from.  That's basic.  Plus, it's common sense that you would want the investigators who were there on the scene to conduct the investigation, but there's another important reason why the Justice Department and the FBI run things that way, and it's almost never discussed, and that is the FBI, the Justice Department, the federal government want to, or at least they used to want to, have investigations run outside the political pressure of Washington because they want to make sure that investigations are decided by the evidence and the law not the political insanity that goes on inside the beltway, and in this investigation, for whatever reason, and this goes back to Hillary Clinton's email investigation which was a criminal investigation and the investigation that's known as Trump Russia which is pretextually a counterintelligence investigation but is actually a fishing expedition in search of a crime carried out under the umbrella of counterintelligence, but in both of those ends of the investigation, they ran it out of Washington.  They ran it at the headquarters level.  When case decisions had to be made, when investigative steps had to be decided on, they weren't decided on as they are in a normal way.  When I was a federal prosecutor and I was running a case, I would meet with my case agents who were from the field office, and we would decide on an investigative strategy, and I would run that up my chain of command, and he or she would run it up their chain of command at the FBI.  That's how things are supposed to work.  In this case, there was no chain of command, there was just command because the investigation was run from the top.

Now why did the investigation turn out the way that it did?  Hillary Clinton was looking at a mountain of evidence, and it wasn't just about classified information.  One of the great head fakes of all time is the idea that the Hillary Clinton case hinged, fell, or rose on this idea of whether she was grossly negligent in handling classified information.  It was actually very clever of them to discuss this in terms of, did they change the memo?  Did they change it from grossly negligent to extremely careless?  Because it focused us in on this issue of how she handled the classified information.  If that case walked into a normal prosecutor's office, it would have been handled as a straight up intent case.  This wasn't a gross-negligence case.  This was a case of somebody who set up, illegally, and against regulation – the regulations by the way, that she herself had to enforce as the head of the state department, a system where she systematically conducted all of the business of the secretary of state under circumstances where she knew that 80 percent of her job involved classified information and that it was inevitable if you set up a system like that, that classified information was going to be retained on it and transmitted over it. 

In a normal case, you would have indicted that case as an intentional violation of the Espionage Act, and you would have told the jury at the end even if you don't believe she knew exactly what she was doing you can still convict her if you find she was grossly negligent, but gross negligence in a case like that in a normal case for a normal defendant, it's an add on.  It's an even if count, and yet the way the media talked about this case, you would have thought that was the whole ballgame, and as a result we were so captivated by that question that we not only missed that this was a fairly straight forward, straight intent case, we missed everything else that she was involved in in connection with violations of the Federal Penal Code.  What happened to the 30,000 emails?  I'm not asking that like President Trump asks it.  I'm asking in the way that a prosecutor asks about it.  It's a felony to destroy one government file.  We're talking about over 30,000.  Over 30,000.  And the server was wiped clean after they got a preservation letter from the House of Representatives and after they got a subpoena from the special committee that was investigating Benghazi, which if it had been committed after 2016, would have been called obstruction of justice.  Unfortunately, before November 2016, I guess it's just Hillary being Hillary.  This was not just a classified information case.  This was a multiple felony straight up case that they made go away, and you can talk all you want.

I put my cards on the table on this.  Jim Comey and I started out in the US Attorney's Office together.  I know him for 30 years.  I've always liked him.  I always got along with him, and I intensely disagree with the decision making he made here, but I'm about to say something that is quasi in his defense, so if you don't want to hear it, go like this, brrrr.  You can blame the FBI all you want, but they were just the front man here.  President Obama in April 2016 on national television on Fox News in an interview with Chris Wallace stated outright that he did not want Hillary Clinton to be charged.  He stated outright that he didn't think she had done anything wrong, and his theory for why she didn't do anything wrong was that she didn't intend to harm national security.  Now, the fact is, that was a classic Obama strawman.  The statute under which she was being investigated does not require proof that somebody had an intent to harm national security.  That's a different crime.  We have a crime for that. 

That's not the one she was being investigated under.  What President Obama was effectively telling you was that if you get somebody who robs a bank at high noon, you don't prosecute them for the bank robbery because they didn't commit a murder during it.  That's about the logic that we're dealing with here, but harm to the United States was not an element of the offense.  It was not part of what she was being investigated for.  Nobody thought she did this to harm the United States.  She did it to hide the degree to which the State Department and her tenure was put in the service of the Clinton Foundation.  That's the reason that she needed to do this, but legally what her motive is doesn't really make a difference.  What matters is whether she did it intentionally, and she did it intentionally in spades.  Yet, Obama makes that statement in April.  Within weeks, the FBI is writing an exoneration memorandum or an exoneration set of remarks that Comey ends up delivering months later in July.  And what does the exoneration say?  The exoneration says exactly what Obama said in April.  That even though we have this immense evidence of wrongdoing, she's not guilty because she didn't intend to harm the United States, and of course no reasonable prosecutor would file charges based on this evidence.  Unfortunately for 20 years, I was notorious as one of the most unreasonable prosecutors in the United States, so I have a somewhat different take on it.

Now, Clinton had to be "exonerated" because she was the only acceptable candidate in the end in the race.  Right?  We certainly know that they thought that at the top levels of the FBI and the Justice Department because we've now not only seen their internal communications where it was clear that Trump was simply unacceptable to them, where they said that they would work to defeat him.  That's what they said among themselves when they thought that no one was listening.  But what else do we know they did?  They investigated people in the administration, including General Flynn on the basis of a law that's been on the books in the United States since the late 1700s which virtually understands is unconstitutional and has never, ever been used.  The Logan Act.  It has never been successfully prosecuted in the history of the United States, and it's so discredited, they never even tried.  Yet, that's the pretext under which they conducted part of this investigation, but the main pretext they used was counterintelligence. 

Again, the thing I said 20 years ago would never happen.  And what they did was now – let's just talk for a second about what counterintelligence is.  Right?  The Justice Department and the FBI in particular have a night job.  I was a prosecutor for about 8 years before I even knew this, and I actually had handled some pretty big cases on the criminal side.  But the FBI has a night job.  It's our domestic security service.  In this country, the CIA and the other intelligence agencies that we have can't operate domestically.  We don't allow them to work in the United States.  At least, they're not supposed to.  The FBI is the agency that protects our country in a counterespionage sense in addition to protecting our country in a law and order sense, and when they're acting in that capacity, in that national security capacity, they have a whole different set of authorities that they're allowed to use, and one of them that we've famously heard about over and over again is FISA, the Foreign Intelligence Surveillance Act, which was enacted in the 1970s precisely because of spy scandals and the Watergate era that went before it.  And the idea of FISA is to give American citizens some due process before the FBI can investigate them not as criminal suspects, but as people who are suspected of being what's known as an agent of a foreign power which means that you're working for a foreign government or an international terrorist organization.  Those authorities are only supposed to be used if you're conducting an investigation that's designed to try to find out what a foreign power is up to in terms of threatening American interests.

So, the pretext that they had here was that Russia was interfering in the election.  And how did they know that Russia was interfering in the election?  I don't know.  Maybe because Russia's interfered in every election since the Bolshevik Revolution.  How hard was it going to be to figure out that Russia was interfering in the election?  But they used the fact that Russia was meddling, and Russia was responsible for the hacking of democratic accounts as a way to have an overarching premise to have an investigation, and then underneath that premise, they conducted a criminal investigation without evidence of a crime.  And I can't tell you how wrong that is in this country.  In this country, we have a longstanding honorable tradition that sets us aside, that makes us exceptional as a free people compared to tyrannical societies, and that's simply this.  First you have a crime, and then you assign a prosecutor to investigate the crime. 

What you don't do is assign a prosecutor and say, go on off now and find a crime, and that's what they did in this case.  And that's why after 2 years, what you have is the president under the cloud of suspicion, under the cloud of investigation notwithstanding that not a single charge has ever been brought that suggests there was any complicity by anybody in the Trump campaign with somebody in Russia in connection with election meddling.  What's the word they use?  Collusion.  Right?  I'm actually working on a book about this called Ball of Collusion.  Why do they use the word collusion?  Well, they use it because it's a weasel word.  Prosecutors don't care about collusion.  We're all colluding by having this conversation today.  Collusion is just concerted activity between two people.  They can load it up.  They can make it pejorative.  They can make it sound as bad as they want to make it sound and evil.  All it is is two people doing stuff together. 

Maybe it's legal stuff.  Maybe it's illegal stuff.  But why do they use the word collusion?  Why get stuck on that word?  Because the word prosecutors care about is conspiracy.  A conspiracy is an agreement between two people to commit a crime, and in order to have a conspiracy, you have to identify what the crime is that the two people supposedly agreed to commit.  Why do you think you've never heard the word conspiracy in 2 years of the Muller Investigation?  Because they don't have it.  If they had it, you would never have heard the word collusion.  You'd have a spade of indictments charging conspiracy.  The Justice Department knows how to do that.  Believe me.  I did it for 20 years.  Conspiracy is the No. 1 tool in the toolbox.  But you never hear the word because they've never had it.  Evidence-wise, there's never been 1 second that they had it, and what you hear in the press now is look at all these people Mueller's charged.  Look at all these indictments he's brought.  They say look, it's 3 dozen, 4 dozen Russians that he's charged in conspiracy cases involving meddling in the election.  I pointed out at National Review a few weeks ago, there's 143 million more people in Russia, and if Mueller charges every single one of them, his stats are going to look great, but he won't be one iota closer to proving that there was any conspiracy on the part of the Trump Campaign to meddle in the 2016 election.

So, what you're seeing now is a lot of stat padding in order to justify the investigation, but oh by the way, we haven't seen anything that justifies the investigation in the sense that it was first authorized in the first place, which was to show that there was some coordination.  That's another weasel word they use.  Coordination between the Trump Campaign and Russia.  Mueller is in the case because essentially, I think, the Deputy Attorney General, Rod Rosenstein, got spooked after FBI Director Comey got fired.  This is like the week that was, May 9 to May 17, 2016.  On May 9, President Trump fired Director Comey on the basis of a memorandum that was happily prepared by Rod Rosenstein that ripped into Comey for mainly the way that he handled the Hillary Clinton Investigation and the way that he spoke publicly about it. 

Now, there's no doubt that the administration's messaging about the firing of Comey could have been a lot better, and in a lot of ways, it was botched, but what happened here, clearly, is Rosenstein expected that he was going to be lauded by democrats over the memo that he wrote to get rid of Comey.  He calculated that the democrats still hated Comey.  That they still blamed him for the 2016 election.  He didn't appreciate that the politics of Washington had changed and Comey had gone from being a villain to somebody who was actually useful in attacking the Trump Administration.  So, as soon as Comey was fired, the democrats obviously perceived an opportunity to accuse Trump of obstructing the investigation, and the collateral damage of that was Rod Rosenstein's wonderful reputation with Democrats.  I remind you, by the way, that at a time that we had a lot of difficulty getting Trump nominees into their positions in various departments of the Executive Branch, Rod Rosenstein was confirmed 94 to 6.  He was formally the US Attorney in blue, blue Maryland.  He has always had a good reputation among Democrats, and he did not like being on the receiving end of the vitriol. 

So, what do we hear that he did in the days that followed?  He begins talking about covertly wiring up against the president in order to show that he's too loony to do the job.  Right?  He talks about maybe invoking the 25thamendment if he can get enough people on board to say that Trump is in over his head, and those were two preposterous plans.  So, what was Plan C?  Name a special counsel.  And on May 17, he named Robert Mueller after considering possibly naming Obama's deputy attorney general.  He then names Bob Mueller as the special counsel and even though the regulations say you can't name a special counsel unless you articulate a basis in fact to believe that there's a predicate for a criminal investigation, he left that out.  He said we're going to give them the Russia Investigation.  The counterintelligence investigation, and from then on what Mueller did is what the FBI and the Justice Department had been doing right up until that point.  Unfortunately, the thing I said would never happen.  They've been using counterintelligence as a pretext to put the president under a cloud of suspicion.

I hope we're nearing an end of it.  I wouldn't count on that.  There's a lot of reporting that suggested that after the election was over, that we'd be getting Mueller's report, and we'd finally be past this.  I wouldn't hold my breath waiting for that to happen.  It may happen, but I think that we're unfortunately a few months away.  I do believe that ultimately, we will get past this, and there will be no actionable offenses found against President Trump.  I don't know, I would bet against it, that there'll ever be accountability for the people who abused their powers in terms of conducting the investigation, but I do think when we finally get past that mess, if that ever happens, we have to do now what I said 20 years ago was a fool's errand, and that is we have to make sure that these powers are never, ever used that way again.