On Tuesday's CNN Tonight, after CNN legal analyst Jeffrey Toobin agreed with Michael Isikoff of Yahoo News that FBI director James Comey was right not to push for indicting Hillary Clinton as "presumptive Democratic nominee" -- citing a lack of precedent by past prosecutors -- fellow guest and former supervisory federal prosecutor Marc Mukasey argued in favor of Clinton's indictment, recalling that prosecutors do not have to follow precedent like judges.
Not to be upstaged by his fellow panel members, Toobin got in a jab at congressional Republicans at the end of the segment as he derided them as "a bunch of incompetent publicity hounds" who "chased Secretary Clinton around a desk" while investigating the Benghazi attack.
Referring to the FBI director, Isikoff argued:
He wanted to make a statement about just how seriously the FBI viewed this. But, that being said, you have to go back to the analysis that he pointed to at the end of his statement saying there was no precedent in previous cases that would have formed the basis for bringing criminal charges. And it would have been extraordinary to bring criminal charges or to recommend criminal charges against the presumptive Democratic nominee, especially on the eve of the convention.
After host Don Lemon posed, "Do you think charges should have been brought?" Toobin bluntly responded:
No, brother Isikoff has it exactly right. This would have been an extreme departure from prior precedents, and you don't do that. You don't come up with a novel legal theory with someone who is the Democratic nominee for President of the United States. You just don't.
But when Lemon turned to his third guest, there was finally a dissenting opinion:
MARC MUKASEY, FORMER SUPERVISORY FEDERAL PROSECUTOR: I think, based on Jim's words, charges could have been brought.
LEMON: Are you surprised that they weren't? You sound like you are.
MUKASEY: I am, I am.
After Toobin, sounding perplexed, injected, "Really?" Mukasey continued:
I think, based on Jim's words, the fact that she exercised extreme carelessness squares exactly with the gross negligence standard. And the fact that there's no precedent for this -- this is not like a judge who needs to follow precedent of his appellate courts. If you have the proof, if you have the law, and if you have the facts, you can bring a case, even though no one has ever done the exact same thing before.
After Lemon asked about "intent," he added: "This is not an 'intent' crime, according to the gross negligence standard."
He and Toobin then went back and forth:
TOOBIN: But it has always been prosecuted as an "intent" crime.
MUKASEY: And you do not have to always do what your predecessors have done. If the facts are there, and the law is there, you can bring a case as a matter of law.
As the segment was ending, Toobin jumped in and took another swipe at Republicans and tied in the Benghazi investigation:
The best thing that could happen to Hillary Clinton is another fiasco congressional investigation like the Benghazi investigation where a bunch of incompetent publicity hounds chased Secretary Clinton around a desk. I mean, this is just the exact worst thing the Republicans could do.
Below is a transcript of the relevant portion of the Tuesday, July 5, CNN Tonight:
MICHAEL ISIKOFF, YAHOO NEWS: He wanted to make a statement about just how seriously the FBI viewed this. But, that being said, you have to go back to the analysis that he pointed to at the end of his statement saying there was no precedent in previous cases that would have formed the basis for bringing criminal charges. And it would have been extraordinary to bring criminal charges or to recommend criminal charges against the presumptive Democratic nominee, especially on the eve of the convention.
DON LEMON: Jeffrey, do you think charges should have been brought?JEFFREY TOOBIN: No, brother Isikoff has it exactly right. This would have been an extreme departure from prior precedents, and you don't do that. You don't come up with a novel legal theory with someone who is the Democratic nominee for President of the United States. You just don't.
LEMON: Marc?
MARC MUKASEY, FORMER SUPERVISORY FEDERAL PROSECUTOR: I think, based on Jim's words, charges could have been brought.
LEMON: Are you surprised that they weren't? You sound like you are.
MUKASEY: I am, I am.
TOOBIN: Really?
MUKASEY: I think, based on Jim's words, the fact that she exercised extreme carelessness squares exactly with the gross negligence standard. And the fact that there's no precedent for this -- this is not like a judge who needs to follow precedent of his appellate courts. If you have the proof, if you have the law, and if you have the facts, you can bring a case, even though no one has ever done the exact same thing before.
LEMON: Even with no precedent?
MUKASEY: Absolutely.
LEMON: What about intent?
MUKASEY: This is not an "intent" crime, according to the gross negligence standard.
TOOBIN: But it has always been prosecuted as an "intent" crime.
MUKASEY: And you do not have to always do what your predecessors have done. If the facts are there, and the law is there, you can bring a case as a matter of law.
(...)
TOOBIN: The best thing that could happen to Hillary Clinton is another fiasco congressional investigation like the Benghazi investigation where a bunch of incompetent publicity hounds chased Secretary Clinton around a desk. I mean, this is just the exact worst thing the Republicans could do.
