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.