The McGahn interviews, Andy McCarthy’s take

Andy McCarthy provides his views of the New York Times’ report on Don McGahn’s interviews with prosecutors on Robert Mueller’s staff. I wrote about the same subject here.

Like me, McCarthy believes it was a mistake for Trump and his then-legal team to agree to the interviews. Andy adds that the Times’ account of what went down in the McGahn interviews “bolsters the already strong argument that the president should not agree to be interviewed by the special counsel.” For sure.

Like me, McCarthy also believes the Times’ account of the interviews reinforces the view that there is no obstruction of justice case against the president. He writes:

Presidents Nixon and Clinton, who were investigated for obstruction, tampered with witnesses, which is an illegal act. (Clinton was impeached but not removed from office; Nixon would have been impeached and removed had he not resigned.) President Trump, by contrast, has not committed any overtly illegal act.

As the Times recounts. . .he fired the FBI director; he urged the attorney general to renounce his recusal from the investigation and resume supervision of it; and he threatened to fire the special counsel (which the Times strains to depict as “attempts” to fire Mueller). Regardless of what one thinks of these actions from the standpoint of judgment and policy, they are incontestably constitutional prerogatives of the chief executive.

Moreover, two of the things that Mueller’s team apparently focused on in the McGahn’s interviews were, essentially, non-actions. Trump reportedly tried to get Jeff Sessions involved in the Russia investigation and contemplated firing Mueller. In other words, Trump did not force Sessions to involve himself (or fire Sessions for not doing so) and he did not fire Mueller.

There is no plausible theory under which Trump’s non-actions are criminal or are evidence of criminality.

McCarthy says, though, that the Mueller investigation is not about prosecuting Trump. Rather, it’s about writing a report that Congress might use to impeach the president. He says Congress can impeach the president for abusing his power even if the abuses aren’t crimes.

There’s nothing to stop Democrats from impeaching Trump if they win control of the House. However, an impeachment based on actions Trump didn’t take — getting Sessions or a replacement to oversee the Mueller investigation and/or firing Mueller — would be an absurdity. So would an impeachment based on the firing of Comey, given that, at the time of his firing, the former Director had found no evidence of collusion with Russia and given that the firing did not halt the Russia investigation and could not reasonably have been expected to do.

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