Andy McCarthy on Secure Freedom Radio

FRANK GAFFNEY:

Welcome to Secure Freedom Radio. This is Frank Gaffney, your host and guide for what I think of as an intelligence briefing on the war for the free world. There’s nobody who’s intelligence I regard more highly and is more needed at this moment than our first guest. He is Andy McCarthy, the former federal prosecutor now a pundit, a commentator, a columnist, a bestselling author, and I’m very pleased to say, a regular guest here at Secure Freedom Radio. Andy McCarthy, thank you very much for taking a few minutes to join us on what I know is an extraordinarily busy day.

ANDY McCARTHY:

My pleasure, Frank.

FRANK GAFFNEY:

I wanted to talk with you about a couple of things. But most urgently, of course, to get your response as a former and quite accomplished federal prosecutor, to your friend, Jim Comey’s decision yesterday, as the FBI Director, not to prosecute Hillary Clinton for what seemed to be a fairly long series of indictable offenses.

ANDY McCARTHY:

Well, Frank, I respectfully disagree with Director Comey, who I – as you point out, I do know for I guess close to thirty years and have a lot of personal and professional regard for. But I just think, in this instance, what he did was lay out what the FBI seems to have put together as a pretty bulletproof case of Mrs. Clinton mishandling classified information in a way that was grossly negligent. Which is what the felony statute, section 793F of the federal penal code –

FRANK GAFFNEY:

Now, he called it extremely careless rather than grossly negligent, but do you think that amounts to the same thing or would for a jury?

ANDY McCARTHY:

Well, yeah, let me put it this way, if you brought a case, what would happen at the end of the case is the judge would instruct the jury on what the law that applied to the case was and in defining the term gross negligence, I’d be surprised if the judge said anything other than extreme carelessness. So the terms functionally are the same. And I don’t think there’s any question from the way that Comey laid it out that he realises that and actually made a point of it. But I think at the critical moment he varied from what law enforcement is supposed to do, which is a straightforward, dispassionate application of law to fact. Having gotten to the point where he made pretty much an overwhelming case of guilt from Mrs. Clinton, certainly a prosecutable case on Mrs. Clinton for that offense, he then did what prosecutors always tell courts they can’t do and mustn’t do, and that is he rewrote Congress’s statute. He basically added additional elements to it that he would like to have seen proved before he would greenlight a prosecution and, you know, prosecutors every day in every court in the United States tell judges that they are there to apply the law as Congress has written it, not to make up the law in a way that they’d like it better.

FRANK GAFFNEY:

Well, let’s talk about the two pieces of that as I see it, Andy. One is, he seems to have added an intentionality requirement that isn’t in the statute, as you know. And then he – and can’t be – and then he says, you know, I just couldn’t, basically, I couldn’t find a prosecutor who would take this case. Talk about the law and talk about that assessment of how prosecutable the case was.

ANDY McCARTHY:

Well, when I say can’t be, Frank, what I mean is that if you were going to have a law that is designed precisely to remind people that have access to our national defence secrets, that they have a special obligation to be careful handling them, and that they can be prosecuted for negligence, gross negligence in the mishandling of them, it wouldn’t make any sense to have an intent requirement there because nobody intends the consequences of what happens when they are negligent or grossly negligent or reckless, the two concepts collide with each other. So the thought that you would add an intent element onto a statute that is precisely designed to deal with a situation where there is no intent to harm the United States is puzzling. And secondly, to go to your other point, I again have to mention what Congress was trying to accomplish because what Directory Comey said is that no reasonable prosecutor on the facts that he – his bureau uncovered would bring this case. And then he spun out a number of factors that prosecutors would think about in terms of whether to bring charges or not, what I was puzzled by was that, was that Director Comey never mentioned the actual first question that any reasonable prosecutor asks after asking whether we have enough evidence. And that is, what was Congress attempting to accomplish in enacting this criminal law? In this instance, obviously what Congress was attempting to accomplish was the protection of the national security and the instruction to people who have access to classified information that they must exhibit special care inn safeguarding it. If those are the things that Congress was trying to accomplish and Mrs. Clinton’s conduct flew in the face of Congress’s objectives, that would be more important to a reasonable prosecutor than any of the laundry list of things that Comey ticked off and I think many, if not most reasonable prosecutors, if they believed there was sufficient evidence, which it certainly sounds like there is, and if they believed that a prosecution would validate Congress’s purpose in enacting the statute in the first place, they would prosecute.

FRANK GAFFNEY:

Yeah. Andy, let me just close out this by saying, are you concerned, as I certainly am, that there is now a Clinton precedent that will be used by others who will claim not to have intentionally done harm, but just been careless?

ANDY McCARTHY:

Yeah, I’m certainly concerned about that. The coverage I read, Frank, suggests that there’s a Clinton exception. That, you know, yet again, the Clintons have been shown to be above the law. But that’s not really how the law works on the ground. You know, Comey tried to tie this case to precedents that he thought he found that were – that he thought were applicable. And that really, even though I think he misapplied that, it does go to show how law enforcement generally works. And this case, which is an outrageous exhibition of gross negligence in mishandling the highest levels of classified information will set a very high bar for the prosecutions of this kind going forward.

FRANK GAFFNEY:

Yeah, I fear so. Andy, you know Jim Comey very well. There are some who are speculating, well, that he could not do more than this under the circumstances without help from the higher-ups in the Department of Justice and that he did use this opportunity to lay out the case and he has reserved the option of prosecuting her later, perhaps after under a new president she no longer has the ability to be pardoned. Could his mind move to such a Machiavellian state, do you think?

ANDY McCARTHY:

No, I don’t buy it, Frank. I mean, first of all, he will never have the decision whether to prosecute. That’s for the prosecutors. In this very unique set of circumstances, he had this positive ability to block a prosecution because, you know, basically the Justice Department is in a very tight spot here because of the misconduct of Attorney General Lynch in meeting with Mrs. Clinton’s husband just a few days ago. So –

FRANK GAFFNEY:

Also reportedly under investigation. Andy, thank you for this. Let me just very quickly ask you in the closing minute, wilful blindness, of course the subject of one of your great books, a subject of your testimony last week, seems to be in evidence in the House at the moment with the Homeland Security Committee chairman pushing for legislation that would, well, institutionalise it, I would guess is the right way to describe it, at the Department of Homeland Security. Your thoughts?

ANDY McCARTHY:

I just think it’s a terrible mistake, Frank. You know, I believe that the countering violent extremism is a way of empowering Islam, not answering it. And to fund it, even if they make a couple of rhetorical tweaks, if we have the same program where we’re just basically delegating Muslim Brotherhood leadership as our councillors in how we do counter-terrorism, that’s a catastrophe for the country.

FRANK GAFFNEY:

Andy McCarthy, God bless you and thank you very much for the great work you do at National Review Online and PJ Media, FOX and so many other outlets, including ours. Come back to us again very soon. Next up, we’ll talk with Diana West about the Clinton scandal and wilful blindness and more. Right after this.