The Special Counsel: The Swamp’s Watchdog for Trump

“I understood this to be my recollection recorded of my conversation with the president.”

That statement by James Comey had this old trial lawyer’s antennae buzzing. While being questioned about his memos-to-self by Senator Roy Blunt (R-Mo.) at last week’s big intelligence committee hearing, the former FBI director used the term “recollection recorded” not once but twice. He was rationalizing why he had failed to treat the notes he’d made of conversations with President Trump as government documents (maintaining, instead, that they were his own property).

“My view,” Comey elaborated, was that the “memorialization of those conversations was my recollection recorded.”

I won’t belabor the fact that the former FBI director’s memos were government records. It is a moot point. He has surrendered them to Robert Mueller, the special counsel appointed by the Justice Department.

My focus is on the fact that a special counsel is what Comey says he wanted, even though he repeatedly acknowledged that Trump himself was not under investigation, and even though the investigation in question—a counterintelligence probe of Russia’s interference in the 2016 election—is the kind that ordinarily does not get a prosecutor assigned. Because its objective is not to build a criminal case, a counterintelligence probe is conducted by intelligence agents and analysts, not criminal investigators and prosecutors.

Many other former Obama administration officials wanted a special counsel, too. So did Democrats and their media echo chamber—all convinced that Trump was not merely objectionable but unfit.

So, the question is: Was that the plan all alongto impose a watchdog on Trump?

Obviously, it has not mattered that there is no crime to investigate, even though the governing regulations make that a prerequisite for appointing a special counsel. Was Washington’s push for a special counsel spurred by concern over Russia or revulsion over Trump?

Without an evidence-based predicate for a criminal investigation of Trump, did the intelligence agencies undertake to build the predicate themselves? Did they reckon that the semblance of a criminal investigation would justify installing a monitor from outside Trump’s administration, with jurisdiction sufficiently elastic to keep the president in check?

So, the question is: Was that the plan all along—to impose a watchdog on Trump?

See, “recollection recorded” is not an idle phrase. It comes from the Federal Rules of Evidence, specifically, Rule 803(5). It is one of several exceptions to the hearsay rule. If you are a seasoned attorney who is in the law-enforcement business, and you are thinking about a hearsay exception while writing an account of an important event, there is a good chance you are calculating that the document you are creating is evidence. Someday, it might even be admissible evidence in a criminal trial.

The hearsay rule is a presumption against admission of out-of-court statements as evidence at a trial. The exception involving recorded recollection addresses memoranda (in writing, or by other means) that are made when the matter recorded was fresh in a witness’s mind. The Comey memos, which the then-director prepared contemporaneously to, or immediately after, the nine conversations he recalls having with Trump, are good examples. Under the exception, if there were a criminal trial, say, two years from now, and a witness could no longer remember an entire conversation, his “recollection recorded” could be used in court to prove what was said—and perhaps even prove the case against the accused.

Of course, Comey’s invocation of the phrase “recollection recorded” could just be lawyer jargon. In his extensive history as a witness in congressional hearings, though, he has proved to be a gifted raconteur who avoids lapsing into legal arcana—the stuff that makes a non-lawyer’s eyes glaze over. You’d expect him to say something down-to-earth, like “my memos,” or “the notes I made.” When he instead slips into the technical language of evidentiary argument—“memorialization” of “recollection recorded”—it is suggestive of a lawyer who is thinking strategically, with an eye toward making sure the evidence he is gathering (or creating) will be admissible.

But admissible at what proceeding?

In thinking about this, we can’t help remembering Comey’s telling explanation of why he orchestrated a leak to the New York Times of a snippet of one of his memos. He did it, he testified, “because I thought that might prompt the appointment of a special counsel.”

A special counsel to investigate … what?

Let’s remember the context. The Times published the story based on the leaked memo on May 16, a Tuesday. According to Comey, the event that triggered his leak was President Trump’s tweet the previous Friday (May 12). In it, Trump made the foolish, Nixonian suggestion that he might have “tapes” of his conversations at the White House, including those with Comey. The former director testified that, while trying to sleep the following Monday night, it hit him like a bolt from the blue: If Trump had tapes, they would actually help Comey—i.e., they’d corroborate his version of a one-on-one conversation in which he says Trump pressured him to drop an investigation of Michael Flynn, Trump’s former national security adviser.

Therefore, Comey decided to leak a portion of his memo about the Flynn conversation, the part describing Trump’s telling him, “I hope you can see your way clear to letting this go, to letting Flynn go.” This, he calculated, would put “into the public square” information that might force the Justice Department to bow to calls for the appointment of a special counsel. Reminiscent of Archibald Cox, this special counsel would boldly investigate the president, demand the surrender of secretly recorded White House tapes, and thus vindicate Comey.

It sure is an engrossing story, a window into the mind of a fine chess player. There’s just one thing: What on earth does it have to do with Russia’s interference in the 2016 election?

Yes, I know it seems long ago and far away now, from a time out of memory. You know, at least 10 minutes ago, right before“Collusion!” morphed into“Obstruction!” But let’s strain our brains: Try to remember the kind of November, when Trump had won, and Dems did bellow.

These cries for the appointment of a special counsel arose out of a media-Democrat narrative that Russia’s meddling in the 2016 election was an enterprise in which Trump simply must have been complicit because … um … er … well … because Trump is unfit … and a lout … and how else could he possibly have beaten someone as awesome as Hillary?

align=”right” Meantime, Obama’s administration took extraordinary steps to spread intelligence about Russia’s potential ties to Trump associates across the intelligence community. Current and former Obama officials encouraged Congress to press for disclosure of that intelligence. The obvious intent was to generate leaks, which would—and did—lead to news stories intimating Trump’s complicity in Russia’s activities. Those stories fueled the campaign for a special counsel.

So, despite having previously dismissed the possibility that the election process had been delegitimized, Obama ordered that Comey and other intelligence-agency chiefs compose a report on Russian interference. Although such reports generally take months to complete, Obama insisted that it be done in just a few weeks, so it could be publicized before he left office.

The thin report pronounced that Russia committed “cyberespionage” because Putin wanted Trump to win. Though he had turned a blind eye to Russia’s various aggressions for eight years, Obama used the report as the pretext for a show of decisive action—expelling Moscow’s operatives and imposing sanctions, suggesting a dark, far-flung conspiracy to steal the U.S. election for the Republican candidate.

Meantime, Obama’s administration took extraordinary steps to spread intelligence about Russia’s potential ties to Trump associates across the intelligence community. Current and former Obama officials encouraged Congress to press for disclosure of that intelligence. The obvious intent was to generate leaks, which would—and did—lead to news stories intimating Trump’s complicity in Russia’s activities. Those stories fueled the campaign for a special counsel.

All that was lacking was—wait for it—actual evidence of collusion. And mind you, even if you had such evidence, there would still be no crime unless the colluding parties were guilty of conspiracy—i.e., an agreement to collude in a violation of the criminal law.

But why let that get in the way of a good story?

The Justice Department’s office of special counsel is a successor to the Watergate office of the special prosecutor, and the subsequent independent counsel statute. According to the pertinent federal regulation, a special counsel should only be appointed when the Justice Department’s leadership “determines that criminal investigation of a person or matter is warranted,” and that “investigation or prosecution of that person or matter” by the Justice Department “would present a conflict of interest or other extraordinary circumstances.” (Emphasis added.)

So, what is the crime based on which Trump’s deputy attorney general, Rod Rosenstein, authorized the appointment of a special counsel?

There isn’t one.

When Rosenstein named Mueller special counsel on May 17, he cited as grounds for the appointment Comey’s testimony at a March 20 House hearing. Here is the pertinent testimony:

the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

Again, a counterintelligence investigation is not a criminal investigation. And the regulations do not authorize the appointment of a special counsel to perform “an assessment of whether any crimes were committed.” There is supposed to be evidence showing the need for a criminal investigation before a special counsel is appointed.

Prior to this March 20 testimony, Comey had assured Trump that he was not under investigation. These assurances continued after this testimony, even though the testimony happened more than a month after the February 14 meeting in which Trump had lobbied Comey on Flynn’s behalf—you know, the “Obstruction!” Moreover, in closed session in connection with his testimony, Comey told members of Congress that Trump was not under investigation—a detail omitted from the director’s public testimony.

Thus, what Comey informed Congress about was a counterintelligence investigation, which had generated no evidence of Kremlin coordination with the Trump campaign, and no suspicion of wrongdoing by Trump.

Based on that, Rosenstein appointed a special counsel.

We don’t have a crime. What we have is a lot of recollection recorded. And, of course, we now have a monitor for Trump.

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About Andrew C. McCarthy

Andrew C. McCarthy is a former chief assistant U.S. attorney best known for successfully prosecuting the “Blind Sheikh” (Omar Abdel Rahman) and eleven other jihadists for waging a terrorist war against the United States – a war that included the 1993 World Trade Center bombing and a subsequent plot to bomb New York City landmarks. He is a recipient of the Justice Department’s highest honors, helped supervise the command-post near Ground Zero in lower Manhattan following the 9/11 attacks, and later served as an adviser to the Deputy Secretary of Defense. His several popular books include the New York Times bestsellers Willful Blindness: A Memoir of the Jihad and The Grand Jihad: How Islam and the Left Sabotage America. He is a senior fellow at National Review Institute and a contributing editor at National Review. He is a frequent guest commentator on national security, law, politics, and culture in national media, and his columns and essays also appear regularly in The New Criterion, PJ Media, and other major publications.

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36 responses to “The Special Counsel: The Swamp’s Watchdog for Trump”

  1. First, it sounds like you have re-evaluated your assessment of James Comey, Andy. Good. He’s a malevolent figure. Given what has surfaced of late about Robert Mueller, he, too, is a shadowy, sketchy individual. Mueller had too many conflicts of interest even to accept this position ethically, unless you consider, as you have:

    “So, the question is: Was that the plan all along—to impose a watchdog on Trump?”

    This is partially true. But the presence of Mr. Mueller has a larger goal: to protect James Comey, to protect the Keystone Gestapo they both once headed, to protect the Administrative State, and to protect the corrupt elites who have turned D.C. into a Third World backwater. Comey’s mission will be to keep the Trump Administration off balance so it doesn’t or can’t reopen the Clinton case or look into the many crimes of the Obama DOJ, including illegal surveillance of its political opponents.

    It’s good to see the scales have fallen from your eyes as they have from others who were more charitable toward Comey. Let’s hope the trend continues.

    • Good points; Cunningly masterful conspiracy of subterfuge.
      The only thing missing is some spicy and lascivious debauchery.
      McCain is traveling the planet desperately searching for anyone that will give him a “Golden Shower” for evidence that it DOES exist!

  2. ♫ I can remember, those cries in November, that echo…!????
    How about a “Super Special Investigator” to investigate the Special Counsel that is operating off all the specious allegations from Comey’s tacit aspersions about the Trump Presidential election “matter”?
    “The Days of Our Lives” gets international syndication!

  3. If Sessions doesn’t fire Mueller, he’s a fool and a cuck.

  4. When I hear the Washington crowd extolling the virtues of Robert Mueller with claims of integrity and honesty my suspicions are raised significantly that the opposite just may be true.. After hearing of his appointees for this commission he confirms the alarm bells about his agenda. Mr. McCarthy has pointed out some very interesting points and facts about the need for a special counsel. This smells like a set up job on steroids.

  5. Watchdog? Maybe. Consider an additional possibility. The Russian counter-intelligence mission was only “part” of the FBI investigation confirmed by Comey at the congressional hearing. If you take the time to listen to the several hours long hearing – they also reference a classified part of the hearing that day with congress. So there may be more to the investigation that is not part of the public record. A close look at Rosenstein’s charge to Mueller, the congressional hearing and the statute Mueller is operating under indicates Mueller is initially looking at three things: 1. (all) Russian government efforts to interfere in the recent Presidential election (not just Trump campaign collusion – could include Hillary, DNC, Obama admin, etc. interactions with Russia re election); 2. matters which arise from the investigation (could include FISA shenanigans); 3. intent to interfere with investigation (leaks, lying under oath, etc.). Rosenstein’s stated reason for appointing a special counsel was to reassure the American people and restore credibility to the FBI. That is why Rosenstein appointed a friend of Comey to lead the investigation and why Mueller is hiring attorneys with known Democratic connections – so when they bring the hammer down on Comey, Democrats, etc. (and possibly a few Republicans as well) their charges will have credibility. Rosenstein understands that he needs the investigation and charges to appear nonpartisan and the best way to do that is to have D’s doing the work. Connecting all the dots, this Mueller investigation is probably less about Trump and more about about Obama, Hillary, the DNC, and clearing out the FBI personnel problems.

    • Exactly! And, Trump nor anyone in his administration could press for any charges against Clinton. She was his opponent in the race. Bloody heck would break loose if that should happen. But once Mueller was appointed and all the democrats were vested in the rightness of his appointment, anything, absolutely, anything is possible. The piano is falling on the heads of the democrats while they gaze down upon the ants on the street.

    • It should be, but you underestimate both the perfidy of the Democrats and the Republicans’ lack of balls.
      The special council was brought in to find dirt on the Trump administration, and, unless he’s fired, he won’t quite until he finds something on someone.

  6. This whole thing started as a “counter intelligence” probe about “Russia” and the election which we still have not seen any real proof that it occurred – next it was collision when the hacking story had no legs – now we have obstruction since the collision story has been disproved – this is a WICH HUNT nothing more.
    The swamp is using this as a distraction not only to bring Trump down but to also cover-up the crimes committed by the Obumbler cabal so they are not investigated.
    The demoRats/progressives are doubling down on their failed agenda coupled with Trump hate.
    As usual they have no clue that we here in middle America support the president not the media and the left!
    Progressivism is the real disease infecting our Republic.
    Progressivism = Totalitarianism disguised as the not so soft hand of paternalism.
    Big daddy government is the problem not the solution.

  7. If the memo was contemporaneous, it would be government property. So, to avoid prosecution, Comey has to drop his contemporaneous claim.

  8. Simple President Trump should demand the special counsel state the crime being investigated. Pardon those he can fairly pardon see if anything is left. If not send Mueller packing. One more thing declassify all 9/11 info for good measure.

  9. Brilliant commentary. Very analytical. Thanks Andy.

  10. We now need to vigorously defend Pres.Trump from false charges of treason and collusion. All Republicans and Independents should call out the MSM for spreading these false rumors. The shooter (and other leftist loons) believe that Trump is likely a traitor (having watched Maddow) and so it is a small step to believe he should be killed. Republicans “deserve” to die if they are literally killing people with their health care proposals and are racists for their immigration plans. Enough.

  11. We actually do have crime. A violation of 18 USC 1505. To wit “corruptly” attempting to interfere or influence the inquiry power of a Congressional committee or a departmental proceeding. Who committed it? James Comey. His leaking of information for the express purpose of influencing a special counsel is a justiciable fact. His corrupt intent is established by his surreptitious use of the memos. They are presume to be government records and confidential under myriad theories regardless of Comey’s late to the table characterization of them as personal notes. He may have his affirmative defense, but the elements of the crime are conceded. Comey cannot argue he acted out of necessity to defend his corrupt intent without admitting the crime of perjury.

  12. Andrew has quite the resume and I’m just a poorly educated Trump supporter, but I’d ask him to read the mandate Mueller has. It is a pretty wide ranging mandate. I appreciate his clarification about the purpose for appointing a special counselor, though. I hadn’t read anyone else saying it in such a straight forward manner. Happy hunting.

  13. All the more reason Trump should fire Mueller and Rosenstein if necessary, right now. I think Trump floated the notion of firing Mueller as a warning to both Mueller and Rosenstien.

    I love Jeff Sessions, but he has exposed the President in very foolish way

  14. If Andrew McCarthy, the former assistant to James Comey, is correct, and James Comey is incorrect, then firing the highly regarded Robert Mueller is a legal and constitutional “no brainer”.
    That, according to McCarthy, Gingrich and Ruddy, should solve everything – problem gone!
    I’m sure all Republicans will rally round in support of that legal and constitutional “no brainer”.
    I look forward to the calm that will result when that occurs and I await the obvious increase in support for Trump and those conjoined Republicans.

  15. This entire fiasco assumes that Comey’s memo to self is even accurate, better yet, that it is not intentionally innaccurate. His past performance is against him.

  16. More brilliant work from Mr. McCarthy. As regards investigation of Trump, there is no there there.

  17. “I won’t belabor the fact that the former FBI director’s memos were government records. It is a moot point. He has surrendered them to Robert Mueller, the special counsel appointed by the Justice Department.”

    But … isn’t their a chain of custody problem? If Comey kept the notes in his custody, there is no proof that they are contemporaneous as he claims … but he’s free to release them … though leaking them through an intermediate seems weird. If Comey filed the notes with the FBI, the contemporaneousness can be proved, but that means Comey leaked Bureau evidence.

  18. Queen checks King. The WaPo announced today that unnamed sources within Mueller’s organization are investigating Trump for obstruction of justice.

    How many leakers exist in D.C.? If Trump’s tie is too long, does that obstruct justice? I might have five bucks that some lawyer will take this position, but gambling is illegal so this is just a thought.

    Does any big shot step back and think how stupid the nation considers this? We have a run away special prosecutor. Again.

  19. Trump should do the undoable and have Mueller fired, and Rosenstein too if he doesn’t fulfil his constitutional wishes.

  20. Sorry for the disrespect to a respected former prosecutor, but duh. The fact that the whole Russia thing was illegitimate was obvious in Nov. Otherwise, the Obama administration would have made public Russia’s intentions well before the fake report. And, in any event, we all know that what the Russians did accomplish was to reveal the truth. You know…mundane stuff like Clinton cheating in the debates. And we also know something else…if the Russians really wanted to see Clinton lose, all they had to do was let out a few of those emails…some classified info might have done it, but far more likely would be a little inside baseball on the Clinton Foundation. So fun games, sir. But even us deplorables can see what’s going on here. And I suspect you and buddies at NR were in on from the beginning.

    And, just an aside, but worth noting amongst all the implied “trump is seen as a danger” innuendo, how come nobody ever worried that the Russians might have collected information from Clinton that they could later have used to extort her with? Hmmmn?

    Now the story line is falling apart and everyone needs to be seen getting in line with what has obviously now been shown as fake. My question for Mr McCarthy is why he ever saw Coney as a patriot, why the scales needed to fall? The man corruptly got Clinton off the hook by claiming a standard that she needed to have been found desirous of harming the country versus simply willfully violating the law. And that she did plainly and simply. Clinton was a lawyer for cripes sake.

    Now, the question out there is what Trump should do with Mueller. He’s obviously an extra-constitutional check on Trump implemented by Big Government. I am of the view that Mueller should be immediately dismissed and free to make any remarks about the investigation he wishes to make, with Sessions free to rebut. Sessions should be briefed in full in advance. President Trump should take his chances with impeachment. He is being impeded from performing the job we wish him to perform in any event.

    If Trump is impeached, the government will be demonstrably illegitimate. Is this the course we are to go?

  21. You have more than a monitor. Washington Post just reported that Mueller is investigating the crime of obstruction of justice on the part of Trump–a crime. So, now it has nothing to do with counter-intelligence or collusion with Russia. Mueller’s been hiring partisan, Democrat lawyers for his team. And they are leaking to Washington Post. They aiming to destroy Trump or whoever on his team they can get. If obstruction doesn’t stick, they will try perjury….it worked last time with Scooter Libby. No wonder Trump is upset that Session resigned and let this happen.

  22. Gosh sure glad I’ve seen “The Fantastiks” enough times to pick up the song cues!

  23. Hillary was supposed to win. It wasn’t until we neared November of last year that we started hearing reports of Russia collusion, and those reports were coming from Podesta and other Clinton sympathizersas they watched her poll numbers go down. Not because of any Russian interference, but because of Clinton the candidate, herself. Even Obama wasn’t biting on that Russia story — until after the election, when Hillary lost and Trump won. That’s when Obama started ramping up the intel sharing. In my opinion, all of this was done because the Obama admin needed to cover their tracks and find a way to make the Trump campaign seem unseemly. The media was all too willing to assist, as was Comey. We’re getting to the point where voters aren’t going to care anymore who is bad and who is good…they’ll see all of government as bad. So much for American Greatness

    I want to know more about Obama, Lynch, Rice, and the Clintons, but that will be covered up and covered up and covered up until I’m long dead and gone. Instead, we’ll be spending the next two years questioning everyone associated with Trump, in an effort to keep everyone from questioning the actions of Obama and the Clintons and Lynch et. al.

    So much for American Greatness.

  24. Trump must send out a stop-the-leaks-immediately tweet and fire Mueller if the WAPO leaks continue.

  25. It would be interesting to know if any of Comey’s supposed memos were time / date stamped by others in the FBI. And if not, then why? After all, it would have been a very easy thing to do.

  26. Rosenstein is either the most Naïve man in the world or a venomous snake. The appointment of Mueller never should have happened. This process is hopelessly tainted before it even gets started.

  27. our great leader on the campaign trail referred to objecting to hillary’s judicial picks with 2nd amendment rights. the fat pile of garbage thought he was being funny

    he wasn’t

    trump is toast

  28. Definition of subterfuge

    1: deception by artifice or stratagem in order to conceal, escape, or evade
    2: a deceptive device or stratagem

    The American People are paying attention and the only hope for the Republic is to have honest people running for office. The media, the GOP, Dems, the Multinationals, millionaires and billionaires need to be didplaced from the seat of governance.

  29. A “past recollection recorded” comes in only if the witness has no recollection of the occurrence. It doesn’t just “come in” as evidence based on jargon from a witness.

  30. This stinks! Cannot have the nuts running the asylum!