Despite its becoming increasingly clear that the conduct of Department of Justice (DOJ) lawyers investigating President Donald Trump was dishonest, it likely is still not something that could be prosecuted, former federal prosecutor Andrew McCarthy said Monday.
McCarthy, appearing on "The Laura Ingraham Show," said prosecutors almost certainly misrepresented the dossier that former British spy Christopher Steele produced. That document helped DOJ get a warrant from a Foreign Intelligence Surveillance Act (FISA) court to wiretap Trump campaign volunteer Carter Page.
But McCarthy said withholding material information from a judge in seeking a warrant is not something that ordinarily results in criminal charges.
"I doubt you're gonna get such a black-and-white misrepresentation in the papers that it would be grist for a criminal prosecution, but then again, I think it all ought to be out there," he said.
McCarthy said professional sanctions would be more likely, though far from assured.
"Theoretically, they could hold people in contempt, but I think, you know, there's a few steps that have to be taken between here and there," he said.
McCarthy said those decisions would hinge on exactly what lawyers told the judge.
"I don't think it's ever going to be adequate," he said. "But there's a big difference between saying that they did something wrong and saying they should be prosecuted."
Even if no one ever gets punished, that does not mean everything involving the investigation was kosher, McCarthy said. He said a memo released by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Lindsey Graham (R-S.C.) confirms the basics of a four-page summary produced by staffers on the House Permanent Select Committee on Intelligence.
"It's simply a fact that they did use the Steele dossier, and they did not reveal to the FISA court that it was a Clinton campaign product," he said.
McCarthy said that from what now is in the public record, it seems clear that prosecutors intentionally withheld the fact that 2016 Democratic candidate Hillary Clinton's campaign paid for the Steele dossier, in conjunction with the Democratic National Committee, which it controlled, through a Washington, D.C., law firm.
"Objectively speaking, it's clearly a material fact and when you look at the contortions that they went through to try to avoid saying it, you know, to try to imply that it was political without saying why it was political," he said. "It's clear that this is something that they deliberated over and tried to come up with a way of not saying it."
Defenders of the Russia probe have argued that the Clinton campaign's role in the Steele document is not material because the agent had proved to be a reliable source in the past for U.S. intelligence agents.
McCarthy rejected that.
"It doesn't matter if he's the greatest agent of all time or the worst agent of all time ... The real inadequacy here is his sources are unidentifiable hearsay Russians who we don't know anything about," he said.
PoliZette senior writer Brendan Kirby can be reached at . Follow him on .