WASHINGTON – It would be better to unravel the Hillary Clinton email scandal in the court of public opinion than a court of law, according to one of the nation’s top legal and political experts, former federal prosecutor and National Review columnist Andrew McCarthy.
“Political responsibility is a more significant issue than legal culpability,” he told WND, then explained why it would not be a good idea to appoint a special prosecutor to investigate possible crimes by the woman who would be president or possible criminal complicity by the White House, Justice Department or State Department.
The case for appointing a special prosecutor to look into all of those possibilities was made in a story posted at the top of the Drudge Report Thursday in which McCarthy was quoted, “The Countless Crimes of Hillary Clinton: Special Prosecutor Needed Now,” alongside the story, “The majority of Americans support a ‘criminal investigation’ of Hillary emails.”
McCarthy, who appears frequently on Fox News as a political commentator and legal specialist, pointed out to WND the high hurdle a special prosecutor would face.
“Whether anyone in the Obama administration from the president on down is legally culpable for any law violations Mrs. Clinton may have committed would depend on their knowledge at the time of the acts in question and whether they had a duty to take action to see that the law was followed.”
But he also pointed out that criminal culpability wasn’t necessarily the biggest issue, especially for the man at the top, President Obama.
“As a matter of political accountability, however, the president is responsible for all acts committed by executive branch officials, and Justice Department officials are responsible to investigate serious potential law violations that come to their attention, particularly those involving government officials.”
“If they do not perform their duties, it does not necessarily mean they can be prosecuted, but it raises a profound question about their fitness for those duties,” said McCarthy, zeroing in on what he saw as the heart of the matter.
The former chief assistant U.S. attorney in New York, and adviser to the deputy secretary of defense, also cited to WND the difficulty in having a special prosecutor investigate this, or any, administration.
“Congress has no power to appoint a special prosecutor. Prosecution is an executive responsibility, and the framers did not want executive and legislative powers exercised by the same set of hands. Any special prosecutor would have to answer to the president and, probably, the attorney general.”
McCarthy’s quote in the story calling for a special prosecutor was not on that subject but to support the contention Clinton violated the Espionage Act. (In two pieces for National Review, McCarthy made the case that the real issue was whether Clinton used her private email to transmit any classified information, regardless of whether the documents were actually marked classified.)
In fact, on May 22 he wrote an argument against using a special prosecutor to investigate the IRS, and by referring the story to WND, clearly implied the same line of reasoning held with respect to the Clinton email scandal.
His contention was the appointment of a special prosecutor “would make the investigation disappear from public view, for months if not years,” and what was really needed was “an investigation designed to shine the light of day on what actually happened.”
“Public disclosure should be the goal here,” wrote McCarthy.
“There will be plenty of time later to prosecute wrongdoers,” he counseled. “The statute of limitations on most federal crimes is five years.”
McCarthy asserted that “the moment a prosecutor — special or otherwise — takes over, the public flow of information stops. All witnesses will claim that the pendency of a criminal investigation means they cannot discuss the matter ‘on advice of counsel.’ They will cease cooperating with congressional investigators.
“The prosecutor will claim that grand-jury secrecy rules bar comment about the expansive investigation (a claim the government routinely makes, even though the rules actually bar comment only by the prosecutor, investigative agents, and grand jurors — not the witnesses). Investigative secrecy is the prosecutor’s stock in trade, for good reasons. It is how you build an airtight case.”
Another problem: “[S]pecial counsels are not independent of the executive branch. They still answer to the attorney general and, ultimately, the president.”
Additionally, the appointment of a special counsel would not necessarily be an effective way to investigate wrongdoing within the administration.
“A special counsel chosen by (then-)Attorney General Eric Holder and President Obama would be no different. It would not get us to accountability; it would be a severe impediment to accountability.”
He concluded, “The conduct of criminal investigations is, unquestionably, a purely executive power. Consequently, there cannot be any legitimate federal exercise of prosecutorial authority independent of the executive branch.”
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