This is a rush transcript from "Life, Liberty & Levin," June 3, 2018. This copy may not be in its final form and may be updated.
MARK LEVIN, HOST: Hello America, I am Mark Levin. This is "Life, Liberty & Levin." I have two great guests tonight, David Limbaugh, how are you sir?
DAVID SCOTT LIMBAUGH, CONSERVATIVE AMERICAN POLITICAL COMMENTATOR AND AUTHOR: Great, how are you?
LEVIN: Andy McCarthy, it's a pleasure.
ANDREW MCCARTHY, FORMER ASSISTANT U.S. ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK: Mark, great to see you.
LEVIN: Well, David Limbaugh, you are my lawyer, one of many. Just - Andy McCarthy, we're all buddies here. But we're going to talk about a really serious subject. Andy McCarthy, you served as Assistant United States Attorney for the Southern District of New York. Some of your notable cases, in 1995, you were the lead prosecutor, Omar Abdel-Rahman, and 11 others. The defendants were convicted in the 1993 World Trade Center bombing, and planning a series of attacks against New York City landmark.
And you have written four books, you're writing your fifth book. They're excellent books. You also write for "National Review" among other publications. You're a senior fellow at the National Review Institute.
David Limbaugh, you've been practicing law for over 30 years, you're a nationally syndicated columnist with creators. You're a political commentator. You're also a New York Times best-selling author. You have you eight books, you're working on your ninth book, and in law school, you went to University of Missouri and your own law review there.
Now I am nervous. I've got two very impressive men here.
But we want to get into some very serious matters here, and very timely matters. This investigation that's going on, these activities related to the President of the United States, his campaign, his transition, and I wanted to talk to you fellows about that tonight.
We know this for a fact. There was, in fact, a FISA warrant. It was extended three times. There was, in fact, a dossier that was paid for ultimately by the Hillary Clinton campaign and the Democratic National Committee.
We know for a fact the dossier in part or whole was used to get an application, to file an application for a warrant in the FISA court, and extensions in the FISA court. We know as a matter of fact, thanks really to the New York Times which tried to walk it back, that there was a spy, if you will, a confidential informant or as the late great James Comey put it, a human resource, who was in the Trump campaign.
I mean, Professor Stefan Halper was in the Trump campaign, he interviewed a number of people. Let me start with you, Andy McCarthy. You've been around a while, you've prosecuted these cases we talked about. You were an Assistant United States Attorney. We hear media outlets and others say, well, first of all, it's not a spy, and second of all, FISA is not a big deal and thirdly, of course, we needed to get to the bottom of this Russia thing. What's the big deal? Trey Gowdy said this is exactly what the American people would want from their FBI. How do you respond to that?
MCCARTHY: I don't think so. I think, Mark, all of the back and forth about whether it's a spy or an informant is really besides the point. When I was a prosecutor, the informants worked for us, so when I spoke to the jury during a case, I would call them the informants, and the defense lawyers would get up and speak to the same jury about the same guys and called them the spies, the snitches, the thinks, whatever.
They're government-controlled covert operatives who you send in to get information regardless what you call them, and the important thing always is why you sent them in, not what you call what they're doing, whether you want to be hyperbolic or use euphemisms about it.
And I think with all due respect to Congressman Gowdy, I don't think the American people would be happy with the idea that the norm we've had in this country, I think from the beginning of this country, but certainly since the modern era, since Watergate, that the incumbent administration does not use the awesome counterterrorism and law enforcement powers that it has to monitor the opposition party in an electoral campaign is a norm the American people would like to keep in place, and Gowdy is simply wrong when he says that the object here was to monitor the activities of a few tangential players that had kind of tenuous connections to the Trump campaign.
It was said explicitly in Congressional testimony a number of times by former Director Comey that the FBI was conducting an investigation of the Trump campaign for coordinating in Russia's cyber espionage...
LEVIN: Wasn't Trey Gowdy among those members of Congress on the committee listening to the testimony firsthand of Mr. Comey?
MCCARTHY: Yes, he certainly was. In fact, the best known testimony is the testimony Comey gave on March 20 of 2017, which is important because it's the jumping off point as it turns out for Mueller's - Special Counsel Mueller's investigation. This is what Mueller took over and what Comey described was a counterintelligence investigation aimed at Russia's interference in the election and the extent to which the Trump campaign was suspected of coordinating in that effort.
LEVIN: And David Limbaugh, the focus is the Trump campaign. All of a sudden we're hearing, "No, no, no, it's just an investigation of the Russian." So where is this argument coming from? Is it because they've now been caught or they have had to confess some of activities that have been taking place?
LIMBAUGH: Well, it sure is very suspicious. We all start out with a presumption that the FBI and DOJ are honorable institutions and we, being conservatives, we support law enforcement apparatus, and that's our bias. Until we see things that concern us, I think we need to remember at the outset that liberals, by and large are ends to justify the means.
They politicize things they're willing to - and not willing, they are anxious to subordinate the rule of law to their political agenda. That's what makes a lot of this stuff believable. They - Obama weaponized the IRS to target conservatives.
He politicized the EPA to a disgusting extent. We can even go back to Bill Clinton putting Bill Lann Lee in the Civil Rights Division of the Justice Department and all of that activism occurring in the very institution that is supposed to be objective and keep justice honest.
So, I start off with that presumption. Then you look at all the things, regardless of whether Trey Gowdy, who I have respect for, of course, regardless of whether there was a technical spy or informant in the campaign, regardless of whether they have convinced him that they weren't investigating Trump, then why did James Comey go out of his way, make a fool of himself, a jerk of himself, an unprofessional person of himself to leak, to start a special counsel investigation?
You don't have a special counsel against Russian entities? You have you special counsels to investigate higher-ups in the executive branch i.e., the President, that's the explicit purpose of it.
So, why did Comey leak to start that? Why was it necessary if what Trey Gowdy says is true? And I am not saying anything he says is not true, but I am saying in terms of how he's emphasizing this. Why did they need to dummy up the FISA application? If they had a bunch of stuff to make them suspicious about Trump campaign and the FBI, why did they use the dossier which was all bogus, 50% of it wasn't even corroborated and we all know the litany of facts about it being prepared by Steele and these people and paid for by the Clinton campaign, they would go out of their way, if they were being neutral, and really going out of the Russians. They would go out of their way not to present that to the court.
And if they did present it to the court, they would disclose to the court that Steele had been fired as an informant by the FBI, that it was funded as opposition research by the Clinton campaign and would have made all those connections, but they didn't.
And so, you have to wonder why? Why did they lie about the redacted material? Why did they play hide the ball? Why did they leak? Something is not right, and that what's makes this suspicious. Even if some things were right, there is still a bunch of things wrong, notwithstanding what Trey Gowdy said.
MCCARTHY: Mark, just to pile on something David said because I think this is very important. I am very sympathetic to Congressman Gowdy's impulse to be protective of the FBI and the Justice Department.
I love the FBI and the Justice Department. I worked most of my professional life there. Like you, you were chief of staff to an Attorney General. These institutions are crucially important to us.
I think the difference is, I am convinced that the best way that we preserve these institutions is we get accountability for what happened and we make sure it doesn't happen again. My sense of things is that Congressman Gowdy is concerned, and a number of people are concerned that maybe the sunlight, the best disinfectant isn't the best disinfectant for this situation because it will be damaging to these institutions. I see it the other way respectfully. I think, we have to find out what happened.
LEVIN: David Limbaugh? Did Comey leak?
LIMBAUGH: He admitted he leaked.
LEVIN: Did McCabe leak?
LEVIN: Is there suspicion that Clapper has leaked?
LIMBAUGH: Yes, and they have all changed their stories about whether there was a spy or not, and by the way, some of these guys that have defended - Clapper and the rest of them say, well, they wouldn't have divulged this because it was classified, you dolt, somebody tweeted me that - well, not at the time we're talking about it. They still maintained that lie way after it was classified.
LEVIN: But my point is, who is besmirching the FBI? When you have the Director of the FBI as a leaker, you have the Deputy Director as a leaker. The Deputy Director has been referred - a criminal referral to the US Attorney's office by the Inspector General of the Department of Justice agreed to by the concomitant office in the FBI.
I mean, that's not you, me and Donald Trump trashing the FBI. That is the leadership of the FBI trashing the FBI?
LIMBAUGH: Moreover, I totally agree with that. I've been really disappointed in Comey. I started out with a neutral opinion about him, because a person that I respect said nice things about him early on.
But look at how he's besmirched himself and thus by extension the FBI that he had going out and doing these interviews, saying these things that are untoward, unprofessional things, saying that Donald Trump was morally unfit for office. Talking about things out of school to all these MSNBC and all these mainstream media outlets, and to sidle up with the Democratic and leftist apparatus, Comey has really, I think, disgraced himself and as a result, somewhat tainted the picture of the FBI during his tenure.
LEVIN: 'Andy McCarthy, as a seasoned former prosecutor and you've seen the worst and the best, Devin Nunes comes under attack all the time. He's led the House Intelligence Committee. He helped unmask the unmasking that was taking place. He's plowing into a lot of this a lot of these preemptive leaks like in "The New York Times" because Nunes and others are on the tail of some of these folks. What do you have to say about Devin Nunes in all of this?
MCCARTHY: I really think he's been heroic, and it's been very brave, I think, to go to a place where you had to know you were going to take flack from very powerful, very entrenched institutions and interests.
I think a lot of people, well, just to be clear on what I think was going through the minds of people who conducted these investigations. They know that counterintelligence matters are classified. In my experience, counterintelligence agents are liable to take outrageous chances and measures that you wouldn't expect criminal investigators to take because they don't expect their work is ever going to be checked.
It's never going to be taken apart by defense lawyers. It's never going to be in a public courtroom, so they go about their business with a little bit of an edge that they just don't think what they're doing is ever going to be reviewed.
If you put on that the overlay that everybody here was ripe dead certain that Hillary Clinton was going to win the election, and this was never, ever going to be spoken of, I really think, Mark, that they thought they were playing with the house money in a lot of ways, and what happened was...
LEVIN: Meaning that they could do pretty much what they want to do and never get caught?
MCCARTHY: Correct. And that's when you get reckless about norms like the importance of an incumbent administration not using these awesome powers to investigate its political opposition.
I think they got reckless about it because they believed they would never be found out, and Nunes has been adamant that they will be found out.
LIMBAUGH: Yes, and not only were they confident that it would never be found out, they proactively tried to ensure that it wouldn't be found out with Strzok and Page talking about when Trump and Hillary became the clear nominees, Strzok texted Page saying now this makes - this will make us have to accelerate the mid-year exam, MYE, and she said of course, I concur, which means they had to make sure that Hillary won and Trump didn't win, obviously.
LEVIN: When we come back, I want to continue with this point and also I want to discuss the big meeting, January 5th, before the Obama administration left office.
Ladies and gentlemen, I hope you'll join us on LevinTV on CRTV every week night, just check us out on crtv.com. If you enjoy what we're doing here, you can enjoy it every night. That's LevinTV on crtv.com.
Andy McCarthy, David Limbaugh. January 5, 2017, there is a big meeting in the Oval Office. The President, Joe Biden, Sally Yates, who is the Deputy Attorney General, becomes acting Attorney General at some point. There is Jim Comey and Susan Rice, National Security Adviser. What do we know about that meeting?
MCCARTHY: Well, we know, Mark, that about two weeks after the fact, as she was packing up her office after President Trump had been inaugurated, Susan Rice, the National Security Adviser for Obama, wrote a memo to the file to cover that meeting and cover in the sense of CIA.
LEVIN: Literally minutes after Trump is inaugurated?
MCCARTHY: Correct. What she says in the meeting is two things that are important. One is that President Obama stressed that everything in connection with the Russia investigation had to be done by the book, you know, because when you've been doing things by the book for eight years, it's important to constantly remind each other that it's important to do things by the book.
LEVIN: And get it in writing.
MCCARTHY: Yes, yes. The other thing that I think is even more important than that is she said that President Obama raised the question of whether they needed to withhold information from the incoming team, meaning the incoming Trump administration. And I think there explains virtually everything we need to know about what happened afterwards.
LEVIN: So what does that mean?
MCCARTHY: Well, the next day after this meeting, Comey and the intelligence chiefs go up to New York to brief then President-elect Trump on the Russia investigation and to give him a very brief sliver of a briefing on the Steele dossier, and what clearly happened is when they briefed him, they did not tell him about the fact that they were investigating the Trump campaign for coordinating in Russia's cyber espionage operation.
So, they tell him a bunch of stuff about the cyber espionage and the with respect to the Steele dossier, they give him the salacious piece about the prostitutes in Moscow but they don't say a word about the principal allegations in the Steele dossier, which is that the Trump campaign is in a conspiracy with Russia to sabotage the election, and I am convinced that the reason they did that was in order to preserve the investigation, to keep it going, the investigation had it, as we've seen, a great promise to hamstring the incoming administration.
It was important to put Trump at ease that he was not a suspect and that his campaign was not the focus, and I think that by...
LEVIN: So he wouldn't kill this ongoing investigation of him?
LEVIN: Of Trump world?
LEVIN: Did they succeed?
MCCARTHY: Yes, I think they did. You know, I think what ended up happening was soon afterwards, they leaked out the briefing on the dossier even though it was abbreviated, was enough of a cover for the intelligence community to leak to the media that they had briefed it, which was the trigger for getting the whole dossier out into the public domain, and once that was out there, I think this thing had a momentum of its own.
LEVIN: Your thoughts?
LIMBAUGH: You know, to add to that, the idea that Trump and his campaign were not being targeted is undermined by the idea that they've never - they didn't plant anybody in the Hillary campaign. They didn't focus on Hillary. They bent over backwards as Andy has written to protect Hillary and we can through the litany of things supporting that.
But they didn't go to Trump and defensively brief him, and that would have been routine. If they're really trying to stop, if their goal is to stop Russian interference in the election, then wouldn't they have warned Trump that they suspected something was going on, and they didn't do that. There's so many facts that we got...
LEVIN: Are you saying enlisted to support?
LIMBAUGH: Enlisted support...
LEVIN: To the incoming President.
LIMBAUGH: They tell us now that he wasn't under suspicion, they should have briefed him on that, and also I think it's important that we remember this salient fact. In the Strzok-Page e-mails, they shared with each other that Obama wants to know everything. This guy is a hands-on, community organizing, writ large activist. He was in control. He micromanaged to the extent that he could in all things, especially things that would advance his agenda.
I don't think it's conceivable that Obama didn't know. It's way more likely that Nixon didn't know about Watergate than Obama didn't know about all the dirt that they were doing, in all respects because we see it throughout his administration.
We have to believe by circumstantial evidence alone and by Obama's activism in his attitude that he was in charge or very well apprised.
LEVIN: Why wouldn't he know? The Attorney General knew, the director of the FBI knew, the head of the National Intelligence knew, the head of the CIA knew, the only one who didn't know was the President of the United States? Some of it was in the newspaper.
MCCARTHY: Except that as we have just covered, everything important that was done in the way of an important decision about this ongoing investigation was done the day after they met with Obama and the Oval Office.
LEVIN: And it's hard to believe that's the first time that he knew what was taking place unless they had an all-day meeting, in which they suddenly started telling him what's taking place.
MCCARTHY: Right, what we know what we've heard recently and this goes to the Nunes House Intelligence Committee report that then Director Comey briefed the National Security Council in the - what was it? They call it the late spring of 2016, that's very early on after Page - this was long before Page goes to Moscow, long before many of the important things in the investigation happened, they're already giving the Obama National Security Council a briefing on people who were in the Trump campaign.
LIMBAUGH: And remember, in terms of Obama's attitude and what he wanted to know and was willing to know, remember him pre-announcing Hillary's innocence? I know that we're talking about the Trump investigation, but these things are necessarily interrelated as Andy has also written about.
And we brush over just the degree to which, the extreme degree to which that they've bent over backwards not to pursue Hillary, and we could go through the writing of the report before he interviewed him, not taping her interview. I mean, it's really disgusting.
Let's say if the shoe were on the other foot, and some anti-leftists were planted in high positions in the FBI, like Strzok and Page, talking about how they needed to - how they couldn't stand this Trump guy, and how they had to protect Clinton and incriminate Trump in so many words, reading between the lines.
LEVIN: They were investigating the Russians, the Russians were interfering with the election during the Obama administration. It seems to me, they would be interviewing Barack Obama, Biden, Clapper, Brennan, Comey and all the rest of them about what they did and what they didn't do.
It seems to me, also following up on your point, you'd have a human resource person I think as Comey put An informant or spy at the DNC, where their e-mails were hacked, or in the Hillary Clinton campaign or the Jill Stein campaign, you wouldn't be focused myopically on the Trump campaign and the special counsel who I want to get to in our next segment, wouldn't be focused myopically only on one campaign. We'll be right back.
LAUREN GREEN, CORRESPONDENT, FOX NEWS: Live from "America's News Headquarters," I am Lauren Green. At least seven people killed in Guatemala today after an eruption of the volcano, De Fuego, one of Central America's most active volcanoes. Some 20 injuries were reported and authorities are unsure how many people are missing.
The towering column of ash covered nearby villages and shut down air traffic over Guatemala City, the country's capital about 27 miles away.
And this word just in from the White House, First Lady Melania Trump will not be joining President Trump at the G7 meeting later this month in Quebec, nor is she expected to accompany her husband to the proposed summit with North Korea's leader in Singapore the week after. Mrs. Trump hasn't made a public appearance since before her five-day hospital stay in mid-May for treatment of a kidney condition. I am Lauren Green. Now back to "Life, Liberty & Levin."
LEVIN: Andy McCarthy, Comey is fired, Comey leaked. Soon thereafter, we get a special counsel by Rod Rosenstein. The Democrats were pressing for a special counsel appointment. Chuck Schumer was pressing from day one for a special counsel because they know how these guys or gals get carried away with themselves. Was the appointment of Mueller based on any criminal statutes or based on any rational basis other than go investigate this stuff?
MCCARTHY: No, I don't think so. I think he's an unguided missile. The appointment was outside, and to my mind flouted the regulations that govern when the Justice Department can have a special counsel, so the regulations say that you're supposed to - as the Justice Department articulate what is the basis for a criminal investigation that the Justice Department is conflicted from investigating in the normal course, and the factual basis, the articulation of that is what is supposed to become the parameters of the jurisdiction.
LEVIN: So a statute, a person, a group, something, he's not just this general prosecutor looking at stuff.
MCCARTHY: Right. And instead what they did, Mark, and this harks back to Comey's testimony that we talked about before the House, they assigned to Mueller a counterintelligence investigation, which is irregular because in the Justice Department, counterintelligence investigations don't get prosecutors.
The design or the aim of such an investigation is not to build a criminal case, it's to divine the actions and intentions of foreign powers to the extent they bear upon American interests. So, it's not even lawyer work, it's really intelligence analytical work, but the big problem with it in the context of an investigation is that it's really just an intelligence gathering or an information gathering exercise and the intelligence guys will tell you they never have enough information.
If I tell you go investigate a bank robbery, you're a lawyer, you're a prosecutor, you know a bank robbery is a set transaction. There are certain core elements of the offense as we say in the prosecutor biz, that you know you have to prove beyond a reasonable doubt. It's got a finite set of boundaries around it.
If you give somebody a counterintelligence investigation and just tell them go off and find out whatever information you can find out, and by the way, if you find any crimes along the way have at it. Then that kind of thing never ends.
LEVIN: Is that equivalent to the United States Attorney or even bigger? The authority that Mr. Mueller has.
It's bigger in the sense that he's had very passive - he technically answers to Rosenstein, the Deputy Attorney General, but Rosenstein, I think committed to like you mentioned Chuck Schumer and the other Democrats, he made a commitment to them, as I understand it, certainly as it was reported in the press, that Mueller would be able to take the facts wherever they led him, and he'd also be able to decide which facts to chase after.
LEVIN: And David Limbaugh, he actually had several staffers also with bill appointments with the power of assisting United States Attorneys, not just Special Counsel assistant special counsel, giving them even broader authority from the eastern district of Virginia we've now learned.
So this is a very, very broad-based investigation where the prosecutor has enormous power.
LIMBAUGH: Yes, and you made that point that may well not be constitutional to give them that kind of authority. And I want to - and that's great work that you did on that, but I want to...
LEVIN: That's the Calabrese, but go ahead.
LIMBAUGH: The thing - the order was so broad that the appointment memo was so broad, it leads me to believe that they were on a fishing expedition. Watergate and Whitewater - they both specified crimes and they had - they specify the evidence that suspected - made them suspect that the crimes had been committed.
Here as Andy says, this was set up as a counterintelligence investigation and so, if they find anything along the way and staff with prosecutors, if Rod Rosenstein is such a hot shot and if he is so good at specificity and legal matters, why did he draft that appointment memo - that initial memo so sloppily and then why did he surreptitiously go back and amend it hoping to retroactively correct it and then won't reveal the appointment memo to Devin Nunes and others to see.
Whitewater was available. Watergate was available. Why all the cloak of secrecy in everything these people are doing if all they're doing is trying to find out about Russian interference in our elections? It's just very suspicious to me.
LEVIN: Let me just briefly point out the issue with Article 2 in the appointments clause, for me, and Professor Calabrese and several others, it's really quite simple. You are their principal officer of the Federal government or you're not. Now, if you're not, we pretty much know who that is. That's the vast majority of the people who work in the Federal government, you don't need to be nominated by the President and confirmed by the Senate.
But when they were debating this issue in Philadelphia at the Constitutional Convention, they spent a lot of time on this. So, you have now Cabinet secretaries, deputy secretaries, assistant secretaries of justice, every US Attorney has to be nominated and confirmed by the Senate as does an Assistant Attorney General or Assistant Secretary or so forth and so on.
So, the argument is, the professor made it and I am expanding on it, wait a minute, this Rosenstein appointment is different than all the other appointments in past, it's unconstitutional. You cannot appoint somebody with the power effectively of almost an Attorney General or a US Attorney even more so in some cases without the President's involvement or without the Senate's involvement.
A principal officer, a subordinate of the President of The United States can't undermine the President's authority when it comes to prosecutions, even in this case. Do you think that's off the wall?
MCCARTHY: I don't think it's off the wall, and I think aside from the legal theory behind it, which you've just set forth, as a practical matter, nobody in the Justice Department, including the Attorney General, is supposed to be unsupervised. The Attorney General answers to the President, everybody else in the Justice Department has a boss, at least one, right? I think it's very dangerous to have a guy who's off without any supervision.
LEVIN: All right, folks, if you like what we're doing here? We do it every night on LevinTV, check us out, crtv.com or give us a call, 844- LEVIN-TV, 844-LEVIN-TV. We hope you'll join us. We'll be right back.
Welcome back, David Limbaugh I want to get back to this issue of supervision?
LIMBAUGH: Yes, well, Andy made the great point that the Special Counsel, there are few checks and balances against the Special Counsel. They have pretty much carte blanche authority.
I just want to make the point, that makes it all the more important that they reveal things to these specially situated people like Devin Nunes in Congress on the investigatory committees because Congress is a co-equal branch, and we have to have some accountability even if it remains secret as to the public. There has to be some check, there wasn't a check, I also want to make the point, Special Counsel is so broad based and they can do what they want under this umbrella of investigating anything, and the whole time, it has put a cloud on Trump's agenda for a year and a half. That's why - that's another reason why we need to have its parameters tightened in the future.
LEVIN: As a matter of fact, on this issue of the parameters of the Special Counsel. I read two Justice Department memos, they have been out there for decades. It's been the position of the United States Department of Justice, 1973 and 2000, so half a century, really, pretty much, it's been the position of the United States Department of Justice, regardless of my opinion or yours or yours or the worlds that you cannot indict a sitting President and they provide an exquisite detail why.
One of them is this, you are dragging down a President of the United States when you're doing something like this, and imagine if he has to defend himself. We all have rights under the Federal Constitution, if you look at the Bill of Rights, due process and so forth, the President is trying to be President, trying to defend himself is an impossibility, they point, among other reasons.
Apparently, that's been the conclusion reached, we believe, Giuliani was set by the Special Counsel's office. And we get into this issue of subpoena. No President has ever been physically pulled in front of a Federal grand jury. No Presidents have ever been indicted. In fact, no President has ever been removed by the United States Senate. That's the only way you can remove a President.
And they point out in these memos to give the prosecutor a power to indict and force a President in a trial is in effect the quasi removal or the movement towards a quasi removal where the prosecutor and the jury replace the Senate, if a President is impeached.
So, let's go to the subpoena issue. How far can they take a subpoena, if, in fact, they conclude, as the Department of Justice did, you cannot indict a sitting President? But you don't have - how does the subpoena process work?
MCCARTHY: See, I think this goes back to David's point, Mark, you know, these guys are not an independent fourth branch of government, right? Mueller technically is an inferior executive officer. I don't know on what authority, if the President doesn't want to be subpoenaed, how does the inferior executive officer tell the chief executive, "Well, we're going to subpoena you anyway?"
And I think this goes to two points. One is this is more of a political issue than a legal issue. You know, Trump could terminate this whole thing now if he wanted to as chief executive. He doesn't do that because of the political fallout, not because legally he doesn't have the authority to do it, and secondly, it becomes clearer and clearer.
I mean, if you think about it, we didn't have a Justice Department until 1870. We didn't have an FBI until 1908. The framers didn't intend that Federal prosecutors were going to rein in executive excess. They intended that Congress was going to do that.
So, the issue here has always been since no one of Mueller's sophistication would ever think that he could have indicted the President of the United States, this has been about impeachment from the first day.
LIMBAUGH: And if they can't indict, then they shouldn't be able to subpoena to examine him for the express purpose of incriminating him. You look at all those mental - the questions that go to his state of mind. It was all designed to find out what he knew in a criminally culpable way, and I also want to say something, Mark, you and I go back some 20 years, during the Clinton impeachment.
You have been consistent about your position on whether a sitting President could be indicted, because I remember that's one of the first things you talked about and that was against our political interests because we were not for Bill Clinton, and you have been consistent throughout on that.
LEVIN: And you have said from day one, and we've always agreed that this was always about impeachment. I want to get to that point in a minute. We'll be right back.
LEVIN: Andy McCarthy, impeachment. This has always been about impeachment, do you think?
MCCARTHY: From the first day. I mean, I don't know a prosecutor as experienced as Mueller would have to know that there would be no way he could indict the President, so what's the point of the whole investigation? It doesn't necessarily mean he wants to impeach him, but he's certainly trying to find out if there's a basis to do it.
LEVIN: All of these leaks about obstruction of justice and so forth, some of them truly absurd, like firing Comey. Fire the FBI Director five times if he wants to. This suggests these kinds of leaks, and so forth. He is going to write the so-called "confidence report," to the Deputy Attorney General Rosenstein who has been known to buckle under pressure, he'll probably release it.
Isn't that what we're talking about? An impeachment report? It isn't that really unseemly that a prosecutor would effectively be writing an impeachment report?
MCCARTHY: Yes, and we go back to again Comey's motivation in leaking, he wanted a Special Counsel to be appointed. Why would he want a Special Counsel to be appointed if not to ultimately lead to the impeachment of Donald Trump.
LEVIN: Go ahead.
MCCARTHY: And I was going to say, I think the other agenda here, Mark, is that he will want to protect the Justice Department and the FBI. So, I think one mission of a report like this is to say that while there may have been investigative excesses here, it was Trump who brought it to his campaign, people like Manafort and Gates and Page and that the Bureau and the Justice Department and the government widely had a basis to be concerned about...
LEVIN: Why is Rosenstein so involved in this? Rosenstein recommended Comey's firing? Rosenstein is buddies with Mueller, Rosenstein is buddies with Comey, in fact, Rosenstein worked for Mueller many decades ago. This must be special independent counsel. Isn't it kind of odd that Rosenstein is overseeing - theoretically anyway - is appointment and work?
MCCARTHY: You know, Rosenstein is one of the few guys I don't know for 30 years in this investigation, but what I find odd about the situation with Rosenstein is, if the removal of Comey is part of the investigation, he's in the middle of it as a witness.
If the FISA warrants are any consideration of the investigation, he signed off on the last one. It seems to me that he's got a bigger conflict here than Sessions had and Sessions' conflict is what gave us Mueller in the first place. I kind of don't get it.
LIMBAUGH: That's right, you don't even have a Special Counsel unless there's a conflict of interest, and yet the Special Counsel's department - quasi department that has been set up is more riddled with conflicts of interest than the Attorney General was. In fact, Sessions, he was talking to a Russian at a party. That is so preposterous. What do you think about that? Why did they...
LEVIN: Did they invite every Democrat in America?
LIMBAUGH: Which just shows you how politicized Democrats are to make a thing of that.
MCCARTHY: Mark, if I can also, I just want to be clear. I am not accusing Rosenstein of misconduct, it's simply an ethical obligation of lawyers that if they are witnesses in the facts that are under investigation, they can't be lawyers in the investigation.
LEVIN: All right, we'll be right back.
Andy McCarthy, how do you see this ending?
MCCARTHY: I think you'll get a report, no impeachable offenses. I doubt the Democrats are going to have the blue wave that they need to have to make a viable impeachment run at Trump, and I think Mueller's investigation and report that he writes is also an attempt to protect the Justice Department and the FBI.
LEVIN: So, it just goes away.
MCCARTHY: I do.
LEVIN: Do you see it that way?
LIMBAUGH: Yes, I think it will not lead to impeachable offenses, but I think it will be cast in a way to defend the FBI and DOJ and to make Trump look bad and you know, any billionaire they can find crimes, they are going to imply that Trump had nefarious financial dealings and appointed the wrong kind of people and they will try to make him look bad, but unless they get him under subpoena and to testify, they won't have anything.
And even if they do, it won't lead to anything because they can't indict him, as you said.
LEVIN: I have a little different take on this. I think you will see the word obstruction pop up from time to time. I don't think they are working this hard and this aggressively to go home quietly.
I could be dead wrong about it and I certainly hope I am, but it also explains why people out there need to make sure they vote because this isn't the end as you point out, a political question - then the jury - it can be decided by the American people.
I want to thank you so much for the wonderful discussion. We very much appreciate it. Thank you for joining us. See you next time on "Life, Liberty & Levin."
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