Liberals in and out of Congress are falling over themselves calling for a special prosecutor to investigate allegations of Russian interference in the 2016 election, but so far they are lacking a key element — a crime.
Despite much sound and fury over tepid allegations of shadowy contacts between Russian operatives and affiliates of President Donald Trump’s campaign, no one has yet offered evidence that an American has broken the law.
“It’s not a crime to benefit from somebody else’s crime. It may be unsavory. But it’s not a crime.”
Former federal prosecutor Andrew McCarthy told LifeZette the only crime identified so far has been hacking into Democratic National Committee computers and the Gmail account of John Podesta, Democratic presidential candidate Hillary Clinton’s campaign chairman. McCarthy noted that an FBI report named the culprit in that affair — Russian agents.
Short of evidence that Trump campaign officials participated in the hack, McCarthy said, there is nothing to prosecute. That is the case even if allegations are true that Russia wanted Trump to win the election.
“It’s not a crime to benefit from somebody else’s crime,” he said. “It may be unsavory. But it’s not a crime.”
That has not stopped a flood of calls for a special prosecutor following revelations that Attorney General Jeff Sessions met twice last year with Russian Ambassador Sergey Kislyak but declined to disclose it to the Judiciary Committee during his confirmation hearing,
“It’s going to be vital that we get the full cooperation of the FBI,” Rep. Adam Schiff (D-Calif.) told reporters Thursday in calling for a special prosecutor.
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Sessions sought to limit the fallout by announcing he would recuse himself from any matters involving the Trump campaign. In so doing, he took pains to make clear that he was not confirming that an investigation even exists and insisted he did not lie during his Senate testimony.
If an investigation does arise, it would fall to a deputy attorney general. Soon, that likely will be Rod Rosenstein, the man Trump has been appointed to be the No. 2 official at the Justice Department.
ThinkProgress, an arm of the Podesta-founded Center for American Progress, sought to bypass Rosenstein by urging Acting Deputy Attorney General Dana Boente to appoint a special prosecutor now. The thinking seems to be that Boente, a holdover from the Obama administration, could appoint a prosecutor who could then aggressively pursue Trump officials even after the permanent deputy takes office.
Though nominally under the control and supervision of the Justice Department, any interference by Trump or one of his political appointees almost certainly would spark a firestorm.
“These are extraordinary measures, but that is because America now faces an extraordinary challenge,” ThinkProgress wrote Thursday. “The nation’s chief law enforcement officer is likely to be the subject of a federal investigation. That requires strong measures to ensure that the investigation is thorough, impartial, and beyond the reach of political appointments.”
But McCarthy said he is not aware of any law that would guarantee Boente would assume responsibility for any investigation of the Trump campaign. Sessions could appoint any Justice Department employee he wanted, McCarthy said.
“He absolutely should not appoint a special prosecutor until someone comes up with evidence of a crime,” he said.
Joseph diGenova, a former U.S. attorney for the District of Columbia, said ordinarily, the procedure would be to appoint the deputy to handle a case when the attorney general steps aside. But diGenova called Boente an “old-line prosecutor” who would not take such a dramatic step as appointing special counsel.
“This is political theater,” he said. “This is not a legitimate call. There’s no basis for it.”
According to The New York Times and Heat Street, which cited anonymous sources, the Obama Justice Department made an application to a special court under the Foreign Intelligence Surveillance Act to conduct surveillance. The application named Trump, according to the reports, but the court turned it down in June.
In October, the FISA court approved a second request that was more narrowly drawn around allegations of a secret server between a Russian bank and the Trump Organization. The New York Times reported that the Justice Department sought the FISA warrants after the FBI concluded that the Trump Tower server did not have “any nefarious purpose.”
It is significant, according to McCarthy, because the FISA court generally does not deal with criminal matters. The completely secret court is designed for national security purposes, not cases in which evidence will have to be introduced in court.
“It’s not a criminal investigation,” he said.
It is ironic, McCarthy said, considering the massive blowback and references to a “banana republic” that greeted Trump when he said to Clinton during a presidential debate that he would appoint a special prosecutor to go after her for mishandling classified information.
“It turns out that when everyone was shrieking over that, the Obama administration was actually having Trump investigated,” McCarthy said.
So where does that leave things? Lots of calls for a special prosecutor but no obvious crime for him to prosecute.