(National Sentinel) Deep Swamp: A former federal prosecutor and expert in counterintelligence probes said following Michael Flynn’s guilty plea means special counsel Robert Mueller is no longer conducting a Russian “collusion” investigation but rather “an impeachment investigation.”
Writing at National Review, Andrew McCarthy said that Mueller’s strategy all along has been to build a case for impeaching President Donald J. Trump built primarily on obstruction of justice regarding the firing of former FBI Director James Comey.
“For all practical purposes, the collusion probe is over. While the ‘counterintelligence’ cover will continue to be exploited so that no jurisdictional limits are placed on Special Counsel Robert Mueller, this is now an obstruction investigation,” he wrote.
“That means it is, as it has always been, an impeachment investigation,” he added.
McCarthy went on to say that analysts who believe Mueller is attempting to build a “major case” against Trump by accepting guilty pleas from Flynn and George Papadopoulos for making false statements, and by indicting former campaign manager Paul Manafort on charges unrelated to the 2016 election are incorrect.
“That is simply not how it works, strategically or legally,” he wrote.
McCarthy noted further that if Mueller had evidence Flynn and others were involved in a scheme — in this case, a scheme to collude with the Russian government to undermine Democrat Hillary Clinton’s campaign — then Mueller would have charged them with that crime, not allowing them to plead guilty to a minor “process crime” of lying to FBI agents.
He said federal prosecutors are instructed under Justice Department policy to charge defendants with the most serious, yet provable, crimes.
So that means that, after more than a year’s worth of investigating, there simply is no collusion to be found, McCarthy said, which means trying to prove collusion was never Mueller’s focal point or strategy to begin with.
“Bottom line: If the FBI had a collusion case of some kind, after well over a year of intensive investigation, Flynn and Papadopoulos would have been pressured to plead guilty to very serious charges — and those serious offenses would be reflected in the charges lodged against Manafort,” he wrote.
“Obviously, the pleas and the indictment have nothing to do with collusion because Mueller has no collusion case,” he added. “Since there is no collusion case, we can safely assume Mueller is primarily scrutinizing President Trump with an eye toward making a case of obstructing an FBI investigation. This also makes sense in light of the pleas that have been taken.”
McCarthy, a senior fellow at the National Review Institute, further explained that even if Trump fired Comey and pressured others in the Justice Department in an effort to protect Flynn and end the Russian investigation, it would have been within his power as president to do so.
But, he added, Trump is disputing Comey’s sworn testimony that the president pressured him, and the Russia investigation never did end — it has been continued by Comey’s predecessor, Christopher Wray.
“Assuming I am correct about Mueller’s theory, its fatal flaw as a vehicle for prosecution is the same as it has always been: As president, Trump had incontestable power to exercise prosecutorial discretion and to fire the FBI director,” McCarthy wrote.
“For argument’s sake, let’s assume the worst: Trump knew Flynn had lied to the FBI (i.e., that Flynn had committed at least one felony), and he leaned on Comey to close the FBI’s probe. Even with those assumptions, there is still no obstruction case.”
McCarthy suggests that Mueller, himself a former federal prosecutor and FBI director, understands all of that and is instead pushing for the appearance of impropriety by Trump — so much that it compels Congress to begin impeachment proceedings against him.
“Any powers can be abused. When executive powers are abused, Congress retains the constitutional authority to impeach and remove the president,” McCarthy wrote. “Obstruction of an FBI investigation may not be realistically prosecutable in court, but there is congressional precedent — in the Nixon and Clinton situations — for obstruction to be a “high crime and misdemeanor” triggering impeachment. Undoubtedly, abuse of the pardon power would also be an impeachable offense, even though it is not reviewable by the courts.
“I continue to believe that this is the real danger for President Trump: A report by the special counsel, either through the grand jury or some other vehicle, concluding a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.
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