The Real Collusion, and the Lessons of the Mueller Investigation

Daniel Davis /

Was there ever a valid reason for the Mueller investigation? What are the lessons for the country about this two-year process and how it unfolded? And what about this new impeachment push? We speak about all this with Andrew McCarthy, author of a new book “Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.” Read the lightly edited transcript, pasted below, or listen on the podcast:

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Daniel Davis: Well, I’m joined now by Andrew McCarthy. He is a columnist for National Review and previously served as assistant U.S. Attorney for the Southern District of New York. Andy, thanks for joining on the podcast.

Andrew McCarthy:  My pleasure.

Davis: So right now the president is embroiled in this controversy over potential quid pro quo with Ukraine, and we’ve seen a lot in the media about that, but just not six months ago it was a different story.

It was about collusion between Trump and Russia, and you argue in a new book called “Ball of Collusion“, you argue that the real collusion crisis wasn’t between Trump and Russia, but between the Obama administration and Democratic goals. Can you explain what you mean by that?

McCarthy: Well, what I tried to lay out in the book is that there was collusion in connection with the election, but the essential collusion was the Obama administration putting the intelligence and law enforcement apparatus of the government in the service of the Hillary Clinton campaign. There was no small amount of collusion in that endeavor to take help, in the way of information from foreign intelligence services, also toward that end. It was obviously for the political purpose of trying to win the 2016 election, and when that failed, to hamstring Trump’s presidency.

But it was clearly doing what Trump is actually being accused of doing now, which is basically taking your government power and exploiting it for political purposes.

Davis:  And what would you say was the biggest piece of evidence pointing to that?

McCarthy:  Well, there’s a lot of evidence. Probably the most interesting evidence and what I hope Congress will cover closely when we finally get to the point of having public hearings about this is the day before the intelligence agencies briefed then President-elect [Donald] Trump at Trump Tower about the Russian interference in the election based on an assessment that the intelligence community, mainly under the direction of John Brennan, who was then the CIA director, had done.

So the Trump meeting happens on Jan. 6. On Jan. 5, there’s a meeting in the Oval Office between, on the political side, President [Barack] Obama, Vice President [Joe] Biden, and Susan Rice, who was then the national security advisor. On the law enforcement/intelligence side, Jim Comey, who was then director of the FBI, and Sally Yates, who was then effectively the acting attorney general. That meeting involved a discussion about what information should be withheld from the incoming Trump people in connection with Russia.

It’s a very interesting meeting in that Susan Rice actually papered it with what we often refer to as a CYA memo. But interestingly, she was intent enough on doing it that she actually wrote the memo, not contemporaneously to the meeting, but 15 minutes after she was out of power, although she still had access to her White House email. In other words, on Jan. 20, she wrote her “contemporaneous memo” of this meeting that had happened on Jan. 5. Of course, by then we had had a tumultuous two weeks, in which the briefing of Trump at Trump Towers was followed… by first, the leaking of the Steele dossier and then the publication of the Steele dossier and all hell breaking loose in that two-week period. I think that’s a very interesting chapter of it, but it shows President Obama in a hands-on way talking about holding information back from the Trump administration.

Davis:  Yeah, very interesting. Looking at the way the Democrats launched into the beginning of this Trump-Russia collusion allegation … would you say that there were legitimate grounds for beginning that investigation?

McCarthy: We don’t know yet. What I’ve always tried to do with this is not take wild swings that we can’t justify, because it doesn’t help anyone, and it certainly doesn’t help my credibility.

So I’ve always tried to look at this as I tried to look at things when I was a prosecutor. Now, you’re at a disadvantage as a journalist on the outside because the prosecutor always knows things that nobody else does, right? You’re always making judgments a little bit in the blind, because you don’t have the information available to you that’s available to them. But what I’ve always tried to do is stay within what we knew and, therefore, draw inferences that were based on that rather than get too extravagant and too far out in front of what we know, to the point where I think it’s a fair criticism that I’ve made mistakes along the way, mistakes that were based on this conservative approach.

To be more concrete about that, probably two and a half years ago when the Steele dossier first emerged, this set of faux intelligence reporting by this guy, Christopher Steele, who had been a British asset, a British intelligence officer who was working, as it turned out, for the Clinton campaign and the [Democratic National Committee] through an outfit called … Fusion GPS.

When the stories first emerged that he had cooperated with the FBI and given these reports to the FBI, people instantly theorized that the FBI had taken this information and run to the foreign intelligence surveillance court to get warrants based on it. At the time, I told them I thought that was nuts, because in my experience what the FBI would have done with any information it got was pick out the five or six facts that it needed to make out probable cause that someone was an agent of a foreign power, and then do an FBI investigation on those facts.

By the time they got to the FISA court, you would never have had to hear Steele’s name. They would have documents and independent witnesses. In other words, by the time they got there, it would be an FBI investigation.

It turns out I was wrong about that. They did exactly the thing I said they wouldn’t do.

So you do the best you can on the basis of the finite amount of information you have and what you think you can logically deduce from it, but it’s a crap shoot when you don’t know everything you should know.

Davis: What do you think of how Robert Mueller handled this investigation?

McCarthy:  I think it was appalling. I think, first of all, his appointment was outside the regulations. I always want to say illegitimate, but that’s a loaded word because the regulations actually have a provision at the end of them, the ones that pertain to a special counsels, that basically say there’s nothing in these regulations that’s actionable. Meaning the Justice Department is saying, “If we violate our own regulations, you can’t do anything about it. You can’t take us to court. You can’t enforce it.”

It’s not like the Justice Department can’t appoint a lawyer from the outside, so anything that Mueller did is legitimate in the sense that it is a prosecutor acting with the authority of the Justice Department. So I wouldn’t want to say it’s illegitimate, but it’s totally outside the regulations.

The regulations say that you’re only supposed to have a special counsel if you have a factual basis to believe a crime has been committed, so in other words, as a basis for a criminal investigation, and secondly, a conflict of interest that’s so profound that the Justice Department can’t handle the case in the normal course. What you judge the conflict on is whatever the factual basis for the criminal investigation is.

Here, with respect to President Trump, they never had a factual basis for a criminal investigation in the nature of a cyber espionage conspiracy between Trump and Russia, so you never even would get to the question of whether there was a conflict that required the Justice Department to get out of the case.

But you know there wasn’t, because when Mueller return these indictments that he returned, what he did was he basically parceled them out to different components of the Justice Department, which you couldn’t do if there was a conflict. The other thing Mueller did was he recruited from the upper levels of the same Obama Justice Department that had been investigating Trump. So if DOJ is conflicted, why are you grabbing staff lawyers from the conflicted DOJ?

Davis: Well, and by the time he finally delivered his report and answered to Congress, I think there was this almost universal impression that he was not as well-versed in the facts of his report as he should have been if he was really running the thing. So did that give you pause and make you really wonder if he was more of a figurehead and that someone else was really running the operation?

McCarthy:  Yeah, that’s admirably charitable on your part. I congratulate you on that.

I think from the beginning, I thought he was very staff-driven. By the way, his staff, you have to separate out the politics of these actors from their skill level. They are grade-A lawyers, very good. Andrew Weissmann’s a really driven, clever, aggressive prosecutor. Michael Dreeben is a very accomplished appellate advocate. They have people in this investigation who are alpha lawyers. And it was clear to me, because I’ve followed the work of some of these people over the years, and I knew some of them back when I was in the Justice Department, the tail end of my years there. You could recognize their work, and you could recognize the way they went about things in their charging instruments.

My big criticism of the charge… I had a number of criticisms, but the big one I had about the way that the investigation was conducted was, there never was a cyber espionage conspiracy between Trump and Russia, there was never any evidence of it.

And the reason that’s relevant is, they would bring these cases, like a one count full statement case, in which they would write a 25 page narrative about collusion, “It’s almost collusion, it feels like collusion, we’re getting close to collusion.” And then you’d flip to the last page, and it would be, a guy lied about the date of a meeting …

So it seemed to me, very transparently, that what they were doing was feeding a political narrative, rather than pushing forward with a criminal investigation.

The criminal investigation was not their top priority, it was the narrative. And they kept talking about statistically all these people they had charged, the dozens of Russians that had been charged, and the number, I can’t remember the exact number, but the Trump associates. And what they never wanted to cop to was, none of the Russians had anything to do with the Trump campaign, and none of the Trump campaign people had anything to do with the Russians.

So they ran their numbers up. And I remember saying at the time, when Mueller did his last dozen or so Russians, saying, “There’s 144 million people, other people, in Russia, who will never see the inside of an American courtroom. And if Mueller indicts everyone of them, he won’t be one inch closer to showing collusion.” So of course he never showed any collusion.

Davis:  Right. And there was, of course, so much hype in the media for over a year, really two years, going into this final report. And the let down, for so many folks who expected some bombshell. It was just not there.

McCarthy: It should be that way though, if you think about it. Because in most instances you do an investigation, and then you charge people, and the story is the charges that you bring.

Here, the narrative was about the investigation, because they didn’t have a crime.

Davis:  So what lessons should we take from that? I feel like a lot of folks are concerned that the media just cried wolf, big time. And all those who were pushing for this investigation cried wolf, because they suggested this was going to lead to some smoking gun, or some compelling case. What lessons should we take away from this?

McCarthy:  Well, I think the biggest lesson is that we don’t want law enforcement, and intelligence, involved in our politics.

I said to you a few minutes ago, that I was flatly wrong when I told people that the FBI, with respect to Steele, that it would be crazy to think the FBI ran to the FISA court with an uncorroborated screed of faux intelligence reports, and of course they did. Because I hate to be wrong, I’ve had to spend a lot of time on why I was wrong about that.

And I think it goes back to, we had this set of procedures in the mid ’90s, that was known as, the wall, which prevented the intelligence side of the FBI’s house from cooperating with the law enforcement side, to pull together information about terrorist organizations. There’s a good argument that having that wall in place stopped us from, at least, detecting one strand of the 9/11 conspiracy. And if you had gotten one strand, who knows whether you could have folded up the whole plot.

So the rationale for the wall, back in the ’90s, was that the FBI, or the Clinton Justice Department, was worried that rogue agents, if they didn’t have the predicate for a criminal investigation, would fabricate a national security angle, or foreign counter intelligence angle, so that they could spy on people until they finally got a crime, and then they would throw that over to the criminal side.

I said, back at the time, that could never, ever happen. And the reason I thought it couldn’t happen, was because if you assume a rogue agent, it would be much easier to lie, and fabricate the basis for a criminal investigation, and just go the ordinary criminal route, than go the national security route. Because in the Justice Department, that’s got a whole bunch of layers of supervision that you have to get through.

So here’s what I didn’t account for, what happens when the supervisors decide to take over the investigation? And that’s what happened here.

Davis: There you go.

McCarthy: And you’re asking me about what do we take away from all this? Number one, headquarters for these agencies, whether it’s the FBI, or the Justice Department, they need to go back to being headquarters. They shouldn’t be hands on doing an investigation, because they’re just as susceptible as every other investigator to the urge to cut corners, and push envelopes, and buck the rules. And that’s why you need supervisors there to say, “We don’t do that kind of stuff.”

And the second thing is, we worry about the Russians, we worry about the Chinese, worry about all these foreign elements, the biggest threat, and the framers knew this, the biggest threat to our elections comes from within, not from without.

And if our government exploits its law enforcement, and intelligence authorities in a way that undermines our political process, that’s much more threatening to us than the Russians are.

The Russians come as the Russians, and they’re not very good at this stuff, although they’ve been doing it forever. But our own government putting its thumb on the scale of an election, is something to be much more worried about than the Russians.

Davis: Well, President Trump is now facing the potential for impeachment, based on his interactions with the Ukrainian president, and allegations that he engaged in a quid pro quo with them. And we’ve been seeing more of the transcript evidence coming out. And just the other day, White House Chief of Staff, Mick Mulvaney, made some comments that seemed to admit that there was a quid pro quo, and then he went back on that, a lot of controversy there.

Do you think that so far, the evidence suggests that there was a quid pro quo that was withholding military aid for an expressly political partisan purpose?

McCarthy: Quid pro quo is one of these terms that really isn’t helpful to our public debate. There’s a lot of terms out there that have a literal meaning, and a specialized legal meaning. And what you always have to watch, is people flipping from one to the other without telling you they’re doing that. And they can make things sound more sinister than they are. Quid pro quo literally just means, this for that. And all foreign exchange is quid pro quo, every single foreign. …

Davis:  Any deal is going to be something for something.

McCarthy: In normal contract law, they’ll teach you the first week of law school, that if there’s not consideration on both sides, there’s no deal. That’s just the way it works. The thing with quid pro quo, and the reason that it sounds sinister, and therefore, the people who are accusing Trump want to use that term, and put it out there, whatever they can, is it’s not a common English term. It’s an antiquated Latin term that we hear anymore, only in corruption cases. And those cases are distinct because the quid pro quo is corrupt. But that doesn’t mean it’s always corrupt. So you have to watch out with quid pro quo.

You also have to realize when you’re dealing with foreign relations, it’s very different from domestic law, and domestic law enforcement. I hear the Democrats speak a lot about Trump committing extortion. That was the flavor of the week about a week ago, that he had extorted… That he had committed the crime of extortion with [Ukranian President Volodymyr] Zelensky.

Davis: And now [House Speaker Nancy] Pelosi is saying it was a shake down. It’s like the same kind of thing.

McCarthy: Yeah, and the thing is, extortion has a meaning in the criminal law, when we’re all in domestic law enforcement, we’re all under the same sovereign, and under the same law. In foreign relations, we want the president to be able to put pressure on other countries. Our whole, for example, the maximum pressure campaign on Iran, is designed to squeeze them to make them come to the negotiating table, and give us concessions. We want to be able to extort other countries in foreign relations.

That doesn’t mean that you want to do it corruptly. The issue at the bottom of all this is always, is the objective corrupt? And in this narrow context what it means is, is the objective in the service of the interest of the United States, or is it in the service of Donald Trump’s political interest?

Now, that sounds like it should be a bright line, it’s not. It turns out that presidents try to get reelected. And when they do, what you find, is that there’s a melding between the American interest, what the American interest is, and what the president’s political interest is. …

Davis: Right, you might make the same case when Barack Obama decided to take out Osama Bin Laden. That was a decision that he made in foreign affairs that obviously was in the good of the country. But hey, it turns out that the president benefited from that.

McCarthy: Yes, and the most important thing is, is it in the interest of the United States? If it is, then everything else is subsidiary.

Davis: So if the president… got information, or asked for information from the Ukrainians that helped him politically, his campaign … So he would say it was dirt on Joe Biden, but so you’re saying that if that served a legitimate national security function, then it’s clean?

McCarthy:  Well, the way I look at this particular conversation, it seems to me that Trump asked for three things. And you have to parse it out because each one of them may be different.

So long before Biden even gets mentioned in the conversation …what Trump seems to ask is for assistance in the Barr Durham investigation, that is the investigation that Attorney General Barr is doing into the origins of the 2016 election to see if there were abuses of power.

Now the Democrats don’t like that investigation and they would like it to be publicly seen as kind of an adjunct of the Trump 2020 campaign. But the fact of the matter is it’s a legitimate Justice Department investigation. I didn’t like the Mueller investigation, but it was a legitimate Justice Department investigation.

There is nothing wrong with the president asking a foreign counterpart for assistance in a Justice Department investigation, it happens all the time. Now normally to be fair, the Justice Department asks for the help.

Here it doesn’t look like the Justice Department–you know, Trump brought this up. It doesn’t look like he talked to Barr about it beforehand. But that part of it is clearly legit.

Then there’s Trump asks him to investigate Biden and the firing of the prosecutor. It seems to me that part of the origins investigation involves what was going on in Ukraine in 2016 and specifically what pressure did the Obama administration put on the Ukrainian authorities to investigate Manafort?

And there’s been a lot written about that and that all went on between 2014 and 2016. It seems to have gotten revived in 2016. If that turns out to be a legitimate part, or a relevant part of the origins investigation, this investigation that Barr and [John] Durham are doing, it would obviously be relevant that the Obama administration, and Biden specifically, had so much influence over the Ukrainians, could get them to do things that they could get a prosecutor fired.  So it seems to me that would be relevant and legitimate to look into.

The last thing is Hunter Biden. To my knowledge there was no Justice Department investigation open on Hunter Biden. Now what it seems he was doing in connection with Ukraine and China and who knows where else is cashing in on his dad’s political influence.

That is icky. … But it may not be criminal. And it sounds like Trump was asking them to look into something that wasn’t under investigation in the United States.

And that the purpose of that would be for his campaign. Now they come back and say, “No, no, this was about corruption.” Now it would be legitimate for the president to inquire into corruption.

On the other hand, if I’m the Democrats, what I’d be asking is, well, where else in the world did President Trump come down on corruption?

Because it seems to me that when he gave his U.N. speech, his approach to the world is we should basically butt out unless there’s some critical American interest at stake.

So he’s hardly been the scourge of corruption. I don’t think Kim Jong-un thinks he’s the scourge of corruption, right? But on the other hand, you could play this game all day.

McCarthy: The thing the Republicans might be asking is, you know, Biden says, We were committed to anti-corruption and that’s why I got the prosecutor fired. It had nothing to do with my son.

So my question as an old prosecutor about that would be … There’s lots of prosecutors in countries where we’re trying to help them with corruption. Can Biden name us one other prosecutor that he tried to get fired? Was it only the guy who happened to be investigating his son or is there a whole list of prosecutors and other officials that he tried to get fired over corruption?

So I don’t think either side is going to come out looking particularly great on this. It’s very unfortunate to me that we’re discussing it with the overlay of impeachment because that makes it much more inflamed than it needs to be. But I think that you should be able to step back and say nobody [was] perfect here.

Davis:  Something tells me that’s not going to be what … either side comes to agree.

But my last question for you here, first we had collusion with Russia. That turned out to be, you know, there was no collusion. Now we have potential impeachment over Ukraine. Do you see similarities between these two? Are they connected in any way or do you think Congress is doing its due diligence?

McCarthy: Oh no, look, I think it’s all political. Well, impeachment is political by nature. So anytime it reared its head, even if it did so legitimately, it would be political.

But before Trump, this is the most unusual impeachment in American history. Not that we’ve had many, but every other impeachment inquiry that I know of arises out of some known episode of misconduct. Here what you have is a president that the Democrats, their base, and a number of people who are anti-Trump, people who are not leftists, but they’re anti-Trump. They decided that Trump was not fit to be president…  before he ever stepped into office.

And they have simply been waiting for the facts to catch up with their predisposition in the instantiation of something they could say is grievous enough that it’s a high crime and misdemeanor.

So this has been basically a three-year conclusion about fitness that has been chasing around after some impeachable act. And for a long time they waited for Mueller and they hoped that Mueller was going to come through for them and that kind of fell through. So this time I think they’re trying to go faster and get it done because the smarter Democrats know that this could blow up on them politically, but the base really wants it.

So I think on this one Speaker Pelosi thinks they can do a fast and nasty impeachment. They can do by Thanksgiving.

Throw it all together, do most of it behind closed doors, get a couple of articles of impeachment out … Make that the one and only time they vote. And then they can go back to their base and say, “See, we impeached him.”

Davis: Even though [Senate Majority Leader Mitch] McConnell lets it die in the Senate …

McCarthy: Yeah, it’ll die. … which is why Pelosi didn’t want to do it in the first place.

But you know, somebody smarter than me told me a year ago, and I doubted this, but it’s proven to be prophetic. That the thing about impeachment is no one’s in charge of it.

And the problem with that is that once the wheels start to turn and the machinery gets rolling, it’s very hard to stop it. There’s no one really who can jump in and stop it.

And we’re in this election cycle where all of their candidates have been pulled to the impeachment position by the base and they’re the most high-profile people in the party right now because of the 2020 race.

So everybody who’s got a platform is pulling for impeachment and it puts a lot of pressure on other Democrats who know better to say, “Oh OK, we have to impeach him because that’s what the base wants.”

But I think in the great middle America out there, even people who don’t like Trump don’t want to put the country through the trauma of an impeachment. And if we’re only 12 months out, I mean this is the first time I’ve ever heard we had an impeachment where they started the impeachment and then they went on vacation for two weeks, right? This is such a national crisis.

So if we’re only 12 months out, what’s the good argument for it’s so important to remove him that we have to take the decision away from the sovereign and let the political class make it? That doesn’t make any sense to me.

Davis: Well, we’ll see how it pans out in the months ahead.

You can follow Andrew McCarthy’s commentary on this at National Review, and his new book is called “Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.” Andrew McCarthy, appreciate your time today.

McCarthy: Thanks so much for having me.

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