McCarthy: Lisa Page’s text PROVES that Mueller CANNOT plausibly charge Trump with ‘OBSTRUCTION’

(National SentinelIn the Clear: Former national security federal prosecutor Andrew McCarthy cleared up some misunderstandings about yesterday’s alleged “bombshell” revelation in which FBI lawyer Lisa Page texted her lover, FBI agent Peter Strzok, that President Obama “wants to know everything we’re doing” in terms of the counterintelligence investigation into Team Trump.

In addressing reports about the revelation in conservative media, McCarthy wrote in his column for National Review that “Your play here is not that Obama is a liar. It is that the president is supposed to ‘interfere’ in intelligence investigations. That makes the Trump-Russia obstruction narrative patently absurd.”

McCarthy goes on to note that he has, for more than a year and well before special counsel Robert Mueller’s appointment, been touting the difference between a counterintelligence investigation and a criminal probe.

“Criminal investigations are about prosecuting people who violate the penal law. Political officials are generally supposed to stay out of them because we are a rule-of-law society — we want individual cases to be decided strictly by the law, not by political considerations,” he wrote.

He notes further:

There is not, nor should there be, complete independence between politics and this law-enforcement mission: Law enforcement is an executive political responsibility; the president is accountable for it; he sets the government’s law-enforcement priorities; prosecutors and investigators exercise the president’s power, not their own; and the president has undeniable constitutional authority to wade into investigations — even to the point of pardoning law-breakers. Still, by and large, the president should not interfere in criminal cases. If the president does interfere, he should do so transparently: Issue a pardon or order the investigation closed, and take the political heat for it; don’t stage-manage a farce to make it look like your crony is being exonerated by a real investigation when everyone knows you will not permit charges to be filed (see, e.g., the Clinton emails case).

Counterintelligence investigations are quite different, McCarthy — who specialized in them as a U.S. attorney — said. Since they are not about violations of penal law, there is no worry that political officials get involved in them, especially presidents because counterintelligence is performed on behalf of presidents.

“Counterintelligence is an information-gathering exercise undertaken for one purpose and one purpose alone: to inform the president, through his subordinate intelligence officials, of information about threats to, and opportunities to advance, American interests,” McCarthy clarified.

“The president is never supposed to resist ‘interference’ in counterintelligence. To the contrary, informing the president is the reason the FBI has a counterintelligence mission,” McCarthy explained. “Indeed, the information derived from counterintelligence operations is often included in the president’s daily intelligence briefing.”

McCarthy referenced the Sept. 16, 2016, text sent from Page to Strzok, in which the pair were discussing “talking points” being provided for then-FBI Director James Comey so he could brief President Obama, because “potus wants to know everything we are doing.”

“It appears obvious that the two are referring to ‘everything we are doing in what was then their most important counterintelligence initiative: the probe of possible connections between Donald Trump, then the Republican nominee for president, and the Kremlin,” McCarthy wrote.

The former national security prosecutor noted that Strzok and Page were working off information provided to the bureau and the Justice Department received via the infamous “Trump dossier” gathered by Christopher Steele, a former British spy who had provided the FBI with reliable information in the past.

Though it appears as though the FBI failed to verify the contents of the dossier, the bureau was nevertheless obligated to brief Obama because, again, it was counterintelligence. Obama’s and the campaign of Hillary Clinton’s motives for creating the dossier aside, it cannot be argued that the document was not considered as evidence in a counterintelligence investigation.

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Put aside what you think about all this politically as we sit here in February 2018. The question is what people were thinking in September 2016. I have no doubt that the Obama administration, including the upper echelons of the Obama-era Justice Department and FBI, believed Donald Trump was unfit to be president and that he was at least vulnerable to blackmail by the Putin regime, if not in cahoots with the Putin regime. I also have no doubt that they were politically aligned with Hillary Clinton, whom Obama was ardently supporting and a criminal investigation against whom the FBI and Justice Department had dropped, despite substantial evidence of guilt, after Obama had signaled that he did not want Mrs. Clinton charged.

The point here is not to sort out the motivations and intentions of officials, which ran the spectrum from a proper desire to protect the country to a politicized loss of objectivity that induced them blindly to accept Steele’s sensational claims as fact. The point is to understand formally what was going on.

Formally, the FBI was doing a counterintelligence investigation of Russian threats to the United States that happened to involve the Kremlin’s potential coopting of the Republican presidential candidate. That was something the FBI was supposed to keep the president of the United States informed about. Informing the president about foreign threats is the FBI’s counterintelligence mission. If the FBI credited the information involved and Director Comey had nevertheless failed to brief President Obama on it, he would have been guilty of an indefensible dereliction of duty.

McCarthy notes that indeed, Obama’s April 2016 statement to Fox News‘ Chris Matthews that he never interfered in Justice Department investigations was comically false as he ran the most politicized DOJ in modern history. He even signaled during the interview that he did not believe she did anything wrong — at least intentionally so — which was a sign to prosecutors and the FBI the president wanted her cleared.

And she was.

“Yet it is frivolous to claim that Obama’s “no interference” assertion in April was a lie because he got briefed by Comey in September about the Trump-Russia caper,” McCarthy writes, because in that April interview, Obama was talking about criminal investigations.

The following September, as indicated by the Page-Strzok text, Obama was being briefed on counterintelligence operations, by comparison.

“A president cannot ‘interfere’ with a counterintelligence investigation because keeping the president informed is the reason we have counterintelligence investigations.

“Consequently, what this episode ought to focus the commentariat on is the obstruction angle of the Mueller investigation. It is cockamamie,” writes McCarthy.

He notes:

The theory behind this aspect of the special counsel’s work is that President Trump obstructed the Russia probe by, principally, (a) leaning on Comey to drop the investigation of Michael Flynn, (b) firing Comey, and (c) “threatening” to fire Mueller. Here is the problem: The Russia investigation is principally a counterintelligence investigation into Russia’s interference in the 2016 investigation. The president cannot interfere in a counterintelligence investigation. Trump can no more obstruct the Russia investigation by taking actions that could conceivably affect it than Obama could obstruct the Russia investigation by being briefed on it and giving the FBI directions on it. Counterintelligence investigations are conducted for the president.

The point of them is to provide the president with all relevant information he needs to make decisions about protecting the country and advancing American interests. That’s also the point of the ‘Russia’ investigation.

Democrats and others obsessed with ‘getting Trump’ fail to make the distinction that counterintelligence operations are conducted to inform the president, McCarthy notes; if Mueller is conducting a criminal probe, then the Justice Department was required to make that point clear when it appointed him.

The DOJ did no such thing. In fact, Deputy Attorney General Rod Rosenstein appointed Mueller without alleging that Trump or members of his campaign team even committed any violations of law.

“But let’s set that aside,” McCarthy continued:

According to Director Comey, Trump was not a criminal suspect. Asking Comey to go easy on Flynn — who was under criminal investigation for lying to the FBI — cannot legitimately have turned Trump into a suspect. As we’ve covered at length, the president is authorized to exercise prosecutorial discretion (an executive power) by weighing in on the merits of prosecuting a person; Trump did not direct Comey to drop the investigation, though he could have; Trump could have pardoned Flynn, which would have ended the investigation; and the investigation proceeded apace — ultimately leading to Flynn’s guilty plea.

As for firing Comey and purportedly threatening to fire Mueller (in fact, Trump has not taken any serious step in the direction of removing the special counsel), these are imagined by Trump detractors into obstruction episodes because they show Trump interfering in the Russia investigation. But the Russia investigation is a counterintelligence investigation. Trump gets to “interfere” in it if he chooses to. Though he grouses about it, he does not seem to have much inclination to interfere in it.

If there is no criminal investigation of Trump — and there is no indication there is — then it is not constitutionally possible for him to “obstruct” a counterintelligence probe since they are conducted for the president McCarthy concluded.

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