RUSH: Andy McCarthy wrote about all this in a very lengthy piece yesterday. He tackled this in a couple of interesting ways. One of the ways he looked at this: Is there some way that Sessions could unrecuse himself in a limited way now? And let me just quote you some of the things that Andy writes.
He believes that Sessions’ recusal was way too broad because it was a counterintelligence investigation, not criminal. This still is not a criminal investigation the special counsel is looking at. As such, the department regulations on recusal on a counterintel operation hardly exist. Sessions need not have recused himself because it is counterintelligence, not criminal. If during a counterintelligence investigation criminal activity is found and the special counsel seeks permission from the attorney general to go look into it, then Sessions could recuse himself in the process if it becomes a criminal investigation involving somebody that Sessions has come in contact with.
Andy says that Sessions should have said that the FBI’s Russia investigation was counterintel and therefore he wasn’t qualified, under department regulations, to recuse. Nevertheless, there was a pending criminal investigation arising out of the Russia investigation, and that is all about Flynn and whether he made false statements to FBI agents regarding his communications with the Russian ambassador at lunch, which is the only place you could find the Russian ambassador, at lunches all the time.
Anyway, Sessions could thus have announced that he was recusing himself only from the investigation to Flynn, which has become a process crime anyway. But he didn’t need to recuse himself from the entirety of the Russian probe. Sessions even could have added that in the event the counterintelligence probe uncovered other criminal evidence that he would be prepared to recuse himself from any resulting criminal investigation to which he had a conflict of interest.
Now, note what the effect of this would have had. Had that scenario happened, had Sessions not recused because it’s counterintel, not criminal, if Sessions had recused himself in this properly limited manner, the question of whether the Justice Department should appoint a special counsel, it would still have arisen, but the jurisdiction of any special counsel would have been appropriately limited by regulation to the criminal investigations that triggered Sessions’ recusal.
In other words, there is no crime. This should not be a special counsel, according to regulations. Sessions, if he had not recused himself from the counterintel investigation, he would still be there and he would be the guy who had appointed the special counsel. And the only way he would have to recuse further is if the special counsel uncovered a crime in the midst of investigating the counterintel circumstance. And if that had happened, then we would have had a much narrower limitation, many, many parameters, limiting the direction the special counsel could take, based on what Sessions decided or would recuse himself or not.
This is really — I think it’s an important point. I’ve long thought that Sessions did not need to recuse himself from this. When I first heard it, my instinctive reaction was disbelief and shock and disappointment as well. I know it’s the what-if game, but it leads to what might be possible down the road. In the scenario that’s been posited here in which the Justice Department follows the regulations — and they’re not right now — the special counsel would not be blocked from investigating other crimes as they’re discovered.
The regulation that controls the special counsel’s jurisdiction expressly allows him to seek the expansion of his jurisdiction if, say, in the counterintel probe he discovers a crime, goes back to the AG or deputy AG, says, “I found a crime. I need a warrant to investigate it.” “Fine, here you go.” Probe expanded. If all of that had happened, then Sessions would still be the attorney general. He’d be in charge of whether or not these additional crimes could be investigated, whether or not he would have to recuse himself from those crimes, but he’d still be an active AG. But instead the regulations have been flouted.
There is no crime. Special counsels must be appointed to pursue a known crime. There is no known crime. It’s a fishing expedition. Call it a witch hunt, whatever. Regulations are being ignored. Sessions recused himself from the Russia counterintel investigation, then Rod Rosenstein handed that investigation over to Mueller.
Consider how improper this is. Not only is Mueller invited to conduct a fishing expedition with no specified crimes limiting his jurisdiction, but counterintelligence probes are classified, which means Mueller’s investigation proceeds in total secrecy with no boundaries on what he may examine and no disclosures about what he’s examining and why.
All of this totally unnecessary if the regulations had been followed, but there was such panic in there because the Democrats were raising such holy hell about this Russia contraption that Mueller now has a free, open field with no limitations, and he can do it in total secrecy.
RUSH: Okay, so here — according to noted former federal prosecutor Andrew McCarthy — is what could happen under present circumstances. “Instead of badgering his attorney general on Twitter, perhaps the president could … act like a president and instruct his Justice Department to comply with federal regulations,” because right now this investigation is proceeding after having flouted all of the regulations involved here. So the president could instruct the Justice Department to start following the regs; limit the scope of this thing.
“Sessions could be directed to consider whether his recusal complies with the regulation that limits disqualification to criminal investigations…” In other words, Sessions could look and say, “You know what? I don’t have to recuse myself at this stage. It’s still counterintel,” and he could unrecuse himself. Right now, people are singing Sessions’ praises. “Oh, he’s the greatest guy! We love this guy! Even though his middle name is Beauregard, we have a newfound respect for him.” Can you imagine if he unrecused himself?
His first name would become Beauregard, his last name would become Beauregard, and the pictures of his family home would be a plantation. But according to McCarthy it could be done because there’s no crime yet — and, as such, there’s no reason (according to the regs) for a blanket, across-the-board recusal. “Sessions could be directed to consider whether his recusal complies with the regulation that limits disqualification to criminal investigations as to which there is a conflict. To the extent it does not, he should amend the recusal to conform to the regulation.
“Rosenstein could be directed to consider whether his appointment of a special counsel complies with the regulations that limit such appointments to criminal investigations…” In other words, Trump could call Sessions: Unrecuse yourself, Dude! They’re outside the regulations over there. Call Rosenstein and say: Look, get everybody back inside the regulations. There’s no crime. The guy shouldn’t even been appointed. There isn’t any crime to pursue here. Bring everything back in line according to the regulations.
“He could further be directed to specify exactly what potential crimes the special counsel is authorized to investigate.” Let’s hear it! Since he has to be pursuing crimes under the regulations, what are the crimes that Mueller is looking into? “Finally, after Rosenstein specifies the crimes, Mueller could be invited to seek an expansion of his jurisdiction if he can demonstrate that he has legitimately found evidence of other crimes.” If this were done — if the regulations were followed — all of us, including Trump, would know what crimes the president is suspected of committing if there are any.
I’m gonna tell you right now: The reason Trump is behaving the way he is is very simple: He didn’t do it! He’s innocent. I would be fit to be tied if I were in his shoes as well. He’s been told three times by Comey he was never the target of an investigation, and it is assumed that he is now after he fired Comey, and then we have the alleged obstruction. Well, let’s hear it! Is that really what’s going on? Is that the crime? It sounds like a good recipe for things that could be directed to happen as we sit here today. I’m sure the White House knows this. Somebody does. Whether they choose this course of action or not, who knows.