February 22, 2024 • 62 mins
In this episode, Lisa welcomes Andy McCarthy to talk about the fraud case against Donald Trump in New York City, concerns about the optics and selective prosecution, the impact on New York's business environment, the timing and sequencing of Trump's indictments, the mishandling of classified documents by Joe Biden, and the actions of Fulton County and their impact on Trump's case. The discussion highlights the potential for unequal application of the law and the erosion of trust in the government's handling of legal matters. Lisa and Andy explore the unequal treatment of individuals based on their political affiliations. McCarthy highlights the stark contrast in the quality of justice received by Democrats versus Republicans, particularly evident during the Obama/Biden/Harris era. The discussion then delves into the problems with the Fulton County case, where the actions of Fani Willis have damaged its credibility. McCarthy questions whether Willis is acting politically or is simply incompetent. Subscribe Now to The Truth with Lisa Boothe. New episodes debut every Monday & Thursday.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
It is abundantly clear that the Democrats twenty twenty four
playbook is to try to bankrupt Donald Trump and to
also send him to jail. We just saw that in
the New York City fraud case, where they're forcing Donald
Trump to pay three hundred and fifty five million dollars
in punitive damage, although he will appeal it. We also
(00:20):
see this in the numerous indictments that Donald Trump is facing,
the numerous trials that he has on his docket over
the next few months heading into the election. So where
does all of this stand, What are the merits of
these various indictments in these various cases that Donald Trump
is facing, what's the timeline of them, and what should
(00:43):
you know? Also, does the revelations that Joe Biden has
mishandled classified information from the nineteen seventies does that impact
the document's case against Donald Trump? And how does Fanny
Willis's behavior impact the Fulton case.
Speaker 2 (00:59):
All of this and.
Speaker 1 (01:00):
More with Annie McCarthy, who is a former Chief Assistant
US Attorney, contributing editor at National Review as well as
a Fox News contributor, and I believe always just does
a really brilliant job of objectively breaking down all this
complex information and putting it in layman's terms for the
rest of us. So stay tuned for any McCarthy. This
(01:21):
is a big episode. We're going to get into a lot,
a lot of detail. You're going to want to listen.
Stay tuned, Andy, I want to start with the New
York City the fraud case against Donald Trump. He's going
to have to pay three hundred and fifty five million
in damage. You've got billionaire business guys like Kevin O'Leary
(01:43):
saying that, look, if Trump is guilty, so is every
real estate developer in America. What do you make of
the merits of this judgment against Trump?
Speaker 2 (01:54):
Well, I think it violates the old manage, Lisa, that
the you know, the punishment supposed to fit the crime,
which is what we're you know, I'm saying crime. We're
talking about a civil context. But this really was treated
in punitive terms. It was treated as if it were
a criminal case. Right. So, but that is the principle
(02:15):
that we're supposed to to go by. And what's offensive
about this is that the penalty is just so out
of whack with what Trump did wrong here, of which
there is no this pretty significant evidence of inflation of assets.
So Leary may be right that this is a much
more widespread practice. Certainly, Donald Trump didn't invent it, and
(02:39):
that goes to, you know, one of his major defenses
that you know, unfortunately doesn't play as well well. I'm
what I'm talking about is his claim that he was
selectively prosecuted. And the way I would put that is
it plays much better as an atmospheric then it does
(03:01):
as a legal claim in the sense that not a
lot of people get their you know, either charges or
lawsuits against them thrown out because they've been selectively prosecuted.
But here what they did in New York was they
took what I regard as a monstrous statute in this context,
(03:23):
this New York Law sixty three twelve, their business law,
and it's really intended for consumer fraud type situations. It's
intended for circumstances where you have somebody or some business
that persistently engages in dishonesty in advertising and the like.
(03:50):
And what you have are you know, hundreds thousands, even
millions of consumers, each of whom you know, deals with
the company in a very limited way so that you know,
you pay a few bucks or maybe a little more
than that for a product or what have you, but
(04:13):
nobody has nobody's transaction is big enough that it's worth
suing over, right, So you can kind of see why
they would want to have a law to protect people
like that. It's almost like what happens in class actions,
where you know, they let a bunch of people who
no single one of them has enough of a harm
(04:34):
that it's worth going through the expense and aggravation of
having to file a lawsuit, so they let them all
sort of join together. These are usually driven by law firms,
and they sue somebody who has persistently engaged in some
kind of a fraudulent practice. But in Trump's case, it
(04:55):
doesn't make sense to apply this because you're not dealing
with a consumer fraud situation. Instead, you're dealing with high
stakes financial transactions in which both sides are sophisticated financial
actors who do their own due diligence. So you know,
(05:16):
Deutsche Bank does not say, oh, Donald Trump, let sure
will lend you five hundred million dollars as long as
you say that's what your assets are worth. Right, These
businesses do their own due diligence. They're in the risk business.
Speaker 1 (05:30):
Well, and banks not claiming that they're a victim, right
like they were happy with the way everything went, so
that they're not you know, they're not saying they're a
victim in any of this.
Speaker 2 (05:40):
Yeah, well that's that's just the thing. There is no victim, uh,
And that is probably I think why this case bothers
people as much as it does. You know, in a
fraud case in the US Attorney's office where I worked,
we had standard words where if a fraud wasn't above
(06:04):
ten thousand dollars, we wouldn't do the case even if
there was a victim, because it's simply, you know, you
have sparse resources in a prosecutor's office, and for the
to get the public the bank for their buck, you
need to take cases that are more serious than that.
And if they're less serious than that, you know, you
rely on people to be able to go sue in
(06:25):
small claims court or maybe the state will take a case.
But we wouldn't even think about taking a fraud case
unless there either were victims or we could prove ironclad
that if people weren't victims, at least there was a
conspiracy to make them victims, Like there was a clear
intent to defraud people. And in this statute, because it's
(06:50):
made it's designed to make it easier for consumers in
a consumer fraud situation to get some recompense. They don't
require proof either of fraudulent intent or that there were
any victims. So you can easily see how somebody who
(07:11):
actually hasn't done anything. I don't want to say he
didn't do anything wrong, because even if you're dealing with
a counterparty who's a sophisticated financial actor, you're supposed to
act in good faith and you're supposed to, you know,
give as accurate an evaluation of your assets that they
are relying on in the transaction as you can. But
(07:35):
you know, if you don't have a victim, then ordinarily
prosecutorial discretion would say, you know, we should move on
to a case where there are victims, because you know,
we're stewards of the public fisk and if you're going
(07:56):
to use the public's law enforcement resources, ought to be
in cases where a harm, you know, real harm was
done and that obviously didn't happen here, you know.
Speaker 1 (08:07):
And it's interesting too, because Governor Hocal is obviously concerned
about the optics of this of any you know, real
estate developers, any you know, any business owners wanted to
do business in the state and in the city of
New York. Again, she said in a radio interview that
this is just a really extraordinary unusual circumstance. Obviously, that
(08:28):
extraordinary unusual circumstances Trump.
Speaker 2 (08:33):
You know, I guess what.
Speaker 1 (08:34):
Is the left done in its efforts to get Trump?
But I mean, it seems like a lot of norms
have been destroyed. The rule of law has been destroyed.
You know, I guess what does that mean?
Speaker 2 (08:47):
More broadly, Well, yeah, I think that the fundamental assumption
of Trump's biggest critics is that they can construct a
law that is as you know, the Latin phrase goes
in the law suy generous. That is that it's a
(09:08):
law that applies only to Trump. That these are you know,
that he's a singular threat to the country. And therefore
all of these precedents that they set and all of
these prosecutions that they've waged, don't set precedents that could
be applied against anyone else, because this is just Trump law.
(09:30):
This is only for him. And the fact is that
just things don't work that way, you know, I remember
when I was a prosecutor doing terrorism cases, you know
a lot of people wanted to because they wanted to
show that the courts worked against terrorism, even though it's
(09:51):
a different kind of an animal to deal with than
regular crime. You know, you wanted to be able to
cut corners in terms of what you needed to prove
in order to hold these guys accountable. And you wanted
to cut down their due process rights to discovery the
case because that would create all kinds of you know,
(10:12):
giving them our intelligence creates all kinds of other national
security threats. And you know the problem with all of
that is those precedents apply in other cases. So if you,
you know, if you would trit due process in a
terrorism case, those principles are no longer just going to
(10:32):
apply in terrorism. They're going to apply across the board,
because it's either just or it isn't. And the same
thing is true with respect to what they're doing with Trump.
In this case, it's okay to take a consumer fraud
statute that wasn't intended to apply to someone like Trump
and apply it to someone like Trump. And the fact is,
(10:53):
as far as the left is concerned, he's not a
unique threat. He may be the personal and bodiment of
everything they hate, but there's a lot of stuff they hate,
you know. They hate gun manufacturers, they hate fossil fuels,
they hate, you know, all kinds of stuff. And if
anyone thinks that they would hesitate to use against their
(11:15):
other political enemies the principles that they've now gotten blessed
in court by using them against Trump, I think you're
just crazy, and I think you're operating under norms that
no longer apply. You know, when I was a prosecutor
in New York, and when I was a New Yorker
growing up, the legal culture in New York was that
(11:38):
you would never run for office saying if you elect me,
I will use the power of the state against our
political enemies, because that would be disqualifying, you know, the
whole idea that a prosecutor would do anything other than
uphold the law in an even handed way without fear
or favor. If you departed from that line, you would
(12:00):
not qualify to have the job. But I think in
the last twenty years, as progressives have gotten a sort
of a power clamp on a lot of these blue cities,
the thing people, the thing people need to come to
terms with is. Progressives are not as offended as most
people are by the idea that you use the tools
(12:24):
and processes of the state in a punitive way. They
think that that's part of the way that you advance
the cause. So, for example, Letitia James, the state attorney
general who prosecuted Trump. She ran for office promising that
if you elect me, I will use my power against Trump.
(12:45):
He's going to know what my name was or what
my name is. That's what she said in her advertisements.
I think Lisa that she won by maybe thirty points,
maybe forty points. So I think people have to come
to grips with the fact that it's not just that
the legal culture has changed. The culture has changed. It
didn't used to be the case that in New York
(13:07):
that people would want to elect that kind of a
person to wield power. It used to be that somebody
who in a very kind of Soviet way said to you,
you know, show me the man and I'll find the
crime that was disqualifying. Now that person wins in a landslide, we've.
Speaker 1 (13:24):
Got to take a quick commercial break. More with any
McCarthy on the other side, it's scary about where we've arrived.
And the irony too is they could end up bankrupting
the state and the process in the sense of I
think there's already been ten billionaires in a four year
period of time that have left New York for Florida,
and I imagine that more are going to be leaving,
(13:46):
you know, the state that's so reliant upon the one
percent to pay I think something like forty two percent
of the state's tax receipts.
Speaker 2 (13:52):
So I used to know that. I used to know
that stat better than I do now. But I do
know that the number of people who pay the lion's
share of taxes, especially in New York City, is infinitesimally
small compared to the population. And I think one of
the fallouts of COVID was a lot of those people
(14:14):
who were in finance realized that they didn't need to
be in New York to do business. And that's that's
hurt the city in a big way.
Speaker 1 (14:24):
Absolutely.
Speaker 2 (14:26):
You know.
Speaker 1 (14:26):
So Trump is also facing you know, a lot of indictments,
He's got different trials coming up. Can you kind of
take us through sort of the timing and the sequencing
of what he is facing over the next few months
and what we should be living.
Speaker 2 (14:42):
Yeah, it's a moving target. So the original thing that
Jack Smith, everybody kind of who was involved in this
on the on the get Trump side, was expecting that
the federal prosecutions were going to go first, especially the
elect interference case that was brought by the Biden administration
(15:05):
special prosecutor or special counsel Jack Smith. That's the one
they were all banking on. And I think the reason
for that is that case is deemed to be I
think a proxy for the impeachment that they never got
done because the impeachment investigation that was done in connection
(15:25):
with Trump post capital riot was incompetent. So they ended
up charging him with something that certainly in a court
of law, you couldn't prove he didn't, you know, incitement
to insurrection. He didn't commit the crime of incitement. And factually,
speaking to my mind, this wasn't close to being what
an insurrection is. And I thought that there was a
(15:48):
valid impeachment case that you could have made against Trump,
but they never made it and they didn't investigate it.
And then they had the January sixth Committee, which kind
of did what was supposed to be the impeachment investigation
of Trump except it was so partisan and one sided,
(16:11):
and it was so dedicated to the proposition of being
kind of a political ad rather than an actual set
of hearings where you try to get at the truth
that it really didn't have bipartisan credibility. But they've always wanted,
you know, a knockout blow against Trump over the Capitol
(16:32):
riot and what led up to it, which is what
Jack Smith and his election interference prosecution in Washington is
the problem with that. There's many problems with that case,
But what to say with the timeline, which is what
you asked me about what he was trying to do,
which would be a major due process violation if it
(16:53):
was done to anyone else. But this, again, this is
like Trump justice, so they figured they could get away
with it. Is he first indicted Trump for the Mara
Lago documents and got Trump locked into a trial with
a date of May twentieth. Now, a lot of us,
myself included, who've actually prosecuted classified information cases, thought that
(17:19):
that was an utterly unrealistic trial date because classified information
cases are very hard to get to trial, even if
you're trying hard. But Smith's idea was to get him
locked into that May twentieth trial, and then after he indicted.
After he indicted that, then he indicted the election interference
(17:41):
case and talked Judge Tanya Chuckkin, who's an Obama appointee
who's presiding over that case in Washington. He talked her
into a March fourth trial date. So what people need
to understand about what Smith was trying to accomplish there
is that, unlike these civil cases that we've watched, where
Trump had the option to show up or not and
(18:04):
he could pretty much come and go as he pleased,
in a criminal case, the defendant has to be there
for every moment of the trial. And these cases that
Smith is talking about, Lisa, are two to three month
estimate trials. So his idea was to have the Republican
candidate for the presidency basically tethered to courtrooms from early
(18:28):
March into August during the campaign, and then assuming that
he got him convicted in the first case, by the
time August came around, it would be time for sentencing
in that case, you know, after the second trial had
taken place. So their idea was to basically keep him
in court for you know, four to six months and
(18:48):
then get him sentenced and if he gets convicted on
in the Washington case, the sentence would clearly be I
don't know if the judge would actually put him in prison,
but those what he's charged them there with calls for
prison time. So that was the way they set the table.
(19:10):
And the problem that Smith immediately ran into is the
May twentieth day for the classified documents was completely unrealistic.
That case I don't think has a chance of going
prior to the election. If you want, we can get
into why it's so hard to get one of those
cases to trial. But more to the point the Washington case,
(19:35):
Trump ended up raising immunity in these pre trial motions.
I don't know whether they really thought that they were
going to win on immunity. But the reason that immunity
is so important to a defendant in Trump's position is
it's one of the few issues in federal criminal law
(19:55):
that you're allowed to appeal pre trial. Most things to
come up in a federal criminal case you have to
get you have to take the trial judge's rulings, and
then the case gets tried, and if the guy gets convicted,
he gets sentenced, and then the whole case goes up
to the Court of Appeals. You don't get to appeal
stuff prior to trial, but there are some issues like
(20:18):
double jeopardy and immunity where the offense is deemed to
be having the trial in the first place, and those
things you're allowed to appeal pre trial. So this was
important to Trump because Trump's goal here is delay. He
wants to push, especially the federal prosecutions against him, beyond
(20:39):
election day because if he wins the election, then his
nominee will be running the Justice Department and they can
simply dismiss they can fire Smith and dismiss the cases
against him. He doesn't even you know, all this stuff
about will Trump pardon himself In theory, he wouldn't even
have to pardon himself because they'd be running the Justice Department.
But he could pardon himself if the court gave the
(21:01):
Trump Justice Department a hard time about dismissing these cases.
But in any event, that was his you know, that's
what his objective is. So the immunity case, the immunity
claim has been has pushed the March fourth trial date
off the calendar because first the case went to the
(21:22):
Court of Appeals to d C Circuit and even though
Trump lost there. He's now appealed to the Supreme Court.
And the rule of the road in federal criminal prosecution
is you're always in one court at a time. So
if the case is on appeal, Judge Chuckkin doesn't have
any jurisdiction to do anything in the district court, so
(21:43):
that case is frozen.
Speaker 1 (21:44):
Now.
Speaker 2 (21:44):
They're not even making motions or doing discovery or doing anything,
which has has Smith frustrated because even though this is
against Justice Department policy, he's being driven by the political calendar.
He wants to get this case tried prior to election day,
which is what the plan always was. So now because
(22:07):
the Feds have not been able to hold their calendar
and have the trials in you know, starting in the
spring that they thought they were going to have, you know,
March fourth, and then May twentieth, since that opened up
the calendar from March, we go back to the Alvin
Bragg prosecution against Trump for the hush money deal. He Bragg,
(22:32):
who is the prosecutor who won't prosecute in New York.
He's like the poster trial for progressive prosecutors. If you're
a hardened criminal in New York, you have a very
good chance of either not being prosecuted at all or
having your felonies pleaded down to misdemeanors. But if you're Trump,
they take what should be at most one misdemeanor business
(22:55):
records misstatement in fraction, and he turns it into thirty
four felonies for which Trump could go to jail for
over a century in theory. But when he was the
first prosecutor to bring an indictment against Trump, that was
in the spring, I believe of last year. And at
that point the judge won March on, who's a Democrat,
(23:19):
set the trial for March twenty fifth of twenty twenty four,
and it didn't look like that case was actually going
to go because Bragg said that he would defer to
the Feds, and he was hoping, as all the Democrats
were hoping, that Jack Smith was going to get his
case to trial in Washington on March fourth. Since that's
(23:40):
now not going to happen, it looks like the Bragg
cases back on the docket and it will go first
on March twenty fifth.
Speaker 1 (23:49):
And how long does a case like that take, you know,
like how long from start to finish to something like that?
Normally take.
Speaker 2 (23:56):
Yeah, so that's a great question. I you know, I'm
in my career as a prosecutor. I actually prosecuted the
longest federal criminal trial in American history. I was one
of five prosecutors on the team, the junior member, which
was a seventeen month trial, and I also had a
(24:17):
nine month trial while I was a prosecutor, and I
over time, I basically developed a theory that if the
prosecutor tells you that the case is going to take
something longer than four to six weeks, that's a kind
of a shorthand way of telling you they don't have
any idea how the hell long it's going to take.
Because you can't predict a trial. A lot of stuff
(24:38):
happens at trial that you just can't predict ahead of time,
and if it gets beyond a sort of a finite horizon,
it becomes very hard to gauge how long these cases
are going to take. The hush money case is a
pretty finite affair, and they're predicting that that would take
like two to four weeks. You have to give a
(25:02):
little bit of rhythm and the timing when you're dealing
with Trump, because it's going to be very you know,
they may take a week just to pick a jury,
and there's a lot of work that has to go
into trying to you know, get a jury that satisfies
both sides that it's that it's fair and impartial, or
you know, satisfies them as much as they're going to guess.
Speaker 1 (25:22):
I guess what I'm trying to figure out is what's
the probability that he could be convicted on some of
these indictments before election day?
Speaker 2 (25:34):
Okay, So I think there's now a high probability that
he will be convicted in Manhattan, and I can I
can go through why I believe that's the case. I'm
not sure that will hurt him politically that much. Of course,
if he got a jail sentence, that would that would matter.
But I think politically the Democrats should not want to
(25:56):
start with the hush money case because it's an objectively
ridiculous case and New York has already demonstrated, between you know,
the e Gene Carroll civil cases and now this this
civil fraud case, I think the public pretty much figures
that New York is rigged against Trump. So I think
this case is almost It's easy for me to say
(26:18):
because you know, I'm not I'm not. I don't have
any prison exposure. But I think the New York case
is almost like a no lose proposition for Trump in
the sense that if he beats the case, he's got
a very strong argument that this whole law fair thing
is a is a part is in witch hunt, which
is what he said all along, and if he loses
(26:38):
the case, it's good people A lot of people are
just going to dismiss it as you know, Oh, there
goes New York again, because the case is objectively ridiculous.
The case where he really has the biggest risk I
think of a conviction pre trial, and this depends on
again whether they can get it to trial is Smith's
Washington case. And the the thing that I didn't add
(27:01):
that is the wild card in terms of whether that
case can go to trial or not is even though
I think Trump is going to lose on immunity before
the Supreme Court, immunity has kind of already served its
purpose for Trump because he's gotten all this delay out
of the appeal of it. And what happened in the
(27:22):
interim Lisa is the Supreme Court announced a few weeks
ago that they would hear the challenge of a number
of the January sixth defendants, not Trump, to the Justice
Department's very controversial use against them of an obstruction statute
(27:43):
that's really intended for obstruction in business fraud cases like
things like shredding documents and the like, and the Justice
Department has used it against the Capital rioters. And what
they're arguing is this is not the use that Congress
intended for this statute. The reason it's so important is
(28:06):
the Washington indictment brought by Smith against Trump has four counts.
The two most important counts of the case and the
two that would have the heaviest sentence if he were
to get convicted, are obstruction counts brought under this same statute,
which means, as a practical matter, I don't think Judge
(28:26):
Chuckkin can start the trial of Trump in Washington until
the Supreme Court rules on the obstruction case or the
obstruction statute in connection with the January sixth defendants. They're
not going to rule, they're not going to hear argument
in that case until I think April, maybe around April
(28:49):
fifteenth or April sixteenth, So we're not going to get
a decision in that case until the end of June
more than likely, and depending on how that case goes,
it could be possible that the court upholds the use
of the statute the way the Justice Department's been doing it,
or it could be that Smith has to do major
(29:11):
surgery on his case, in which case he'll have to
supersede the indictment. You know. Dependent Trump of course hopes
that it's such a momentous decision in favor of people
who are challenging the statute that it will dismantle Smith's
case and he won't be able to bring it. But
we'll have to see what the Supreme Court does. The
only thing I would say in anticipation of it is
(29:36):
I believe the use of this obstruction statute against Trump
is much more problematic for the prosecutor than the use
of it against the Capital rioters, because what the obstruction
case comes down to is what does the statute mean
by corrupt obstruction. What the statute says is it's anybody
(29:57):
who obstructs a proceeding, including a congres rational proceeding, by
corrupt activity. And corrupt is a very vague word. It's
a very ambiguous word because there's a lot of stuff
that we do that's corrupt that's actually not illegal, right,
And there's a lot of stuff that you do that's
corrupt that is illegal. So it seems to me that
(30:19):
with that statute, it makes a lot more sense to
apply it to somebody who, say, takes a flagpole and
hits a police officer during the Capitol riot than it
is to apply it to Trump, who is not charged
in a violent crime. And the obstruction theory that Smith
has is that Trump relied on a kakamami legal theory
(30:43):
that he knew that Trump supposedly knew was invalid, that
the vice president had the authority to discount state certified
electoral votes. I think Trump's going to have a very
strong argument that that it's not what Congress had in
mind when they enacted that obstruction statute. But I dilate
(31:05):
on this because it's probably the most important thing in
response to the question you asked me, which is if
Trump does Trump run a risk of a very serious
criminal conviction prior to election day? And the only way
I can answer that is if the Supreme Court leaves
Smith's case intact and the case can get tried starting
(31:30):
in say July, then I think Trump runs a very
high risk of being convicted.
Speaker 1 (31:38):
Quick break more on all these indictments stay with us.
You know, you mentioned the sort of stretching of the
obstruction for the January six ers. I mean, there seems
to be a lot of that when you look at
you know, brags sort of turning a misdemeanor into a
felony that's already passed the Statute of Limitations or you know,
Fulton County, en Rico, or you know, I mean, there
(31:58):
just seems to be a lot of stretching of the
law and maneuvering of the law, and you know, and
you know, just taking a lot of what's the right word,
taking a lot of blanking on the right word. But well,
they're taking liberty exactly, denial to deny ones, liberty, to
(32:19):
deny liberty.
Speaker 2 (32:20):
Well, I'll say if I could say one thing about
that though, which is the elephant in the room, so
to speak. You know, it's been against the law of
the United States since eighteen seventy to commit insurrection, and
one hundred one thousand, two hundred and sixty people I
believe have been prosecuted so far by the Justice Department
(32:42):
in connection with the quote unquote insurrection of January sixth.
Not a single person, not just Trump, not a single
person has been charged with insurrection. And you wouldn't have
to have extravagant theories about obstruction and civil rights and
fraud and rico and turning you know, a business records
(33:07):
faux pas into thirty four felonies. You wouldn't have to
do any of that stuff if they had just a
nice clean of insurrection case. Insurrections a federal criminal statute
section I think twenty three eighty three of the Criminal Code.
It's been on the books, as I said, for like
a century and a half. If they had an insurrection case,
(33:29):
all of these problems go away. You just charge a
guy with insurrection, prove it beyond a reasonable dabt a trial.
Why do you figure the Justice Department's never done.
Speaker 1 (33:38):
That because it ain't it.
Speaker 2 (33:41):
They don't have it. You know, if they had it,
this would be the easy you know, the shortest distance
between two points is still a straight line, you know,
insurrections the straight line here. If they had the case,
then all of this goes away, and none of us
would be defending Trump on insurrection if they if he
had actually done an insurrection. If they had been an
insurrection and he commanded it in some way that they
(34:04):
could prove by evidence, I'd offer to come out of
retirement to prosecute the case myself. But they don't have
the case. That's the problem they've always had, well.
Speaker 1 (34:14):
You know, and this just frustrates me so much because
I hate things that are unfair and an unequal application
of things. You know, I'm all for, Like, you know,
I felt that way about Parah, Like, Okay, fine, I
don't want people doing business with foreign countries and not
you know, being open and transparent about it here in
the United States. But like, if you're not going to
go after everyone, then you know, go fly a kite. Right.
(34:34):
But with all this Trump stuff, it's only it always
goes in one direction, you know. I wanted to ask you,
does in the in the documents case for Trump, does
the fact that the special counsel and Biden's own Department
of Justice found that he's willfully mishandled classified documents since
(34:55):
the nineteen seventies, By the way, when you're a senator,
which takes a real effort to do that, to try
to take documents out of the skiff which I imagine
is what ultimately happened, or when he was vice president,
when he didn't even have the classification authority that Trump
did as president, does that impact that case at all?
Does it take the teeth out of the case, the
(35:17):
fact that you know, seems like everybody's doing it, but
only one man is being persecuted for it.
Speaker 2 (35:24):
Well, I do think that, you know, one of the
things that Trump is going to raise, and this goes
to an issue that we started to talk about at
the beginning, which is a selective prosecution claim. And I
think he's got a very good selective prosecution claim because
the case in ma A Lago is mishandling of classified
information coupled with obstruction. And I think actually the Justice
(35:49):
Department and Smith were foolish on this score. They shouldn't
have been, you know, they indicted like three dozen classified
information counts. They should have they should have tried this
case as as straight obstruction, charged it and tried it
as a straight obstruction grand jury obstruction case, and Smith
might have had a chance to get that case to
(36:10):
trial rather than what's now happened to him, which is
these all hung up on these admissibility issues in connection
with classified information. But the reason I think he's got
a good that Trump has a good selective prosecution claim
is Biden clearly engaged in wilful mishandling of classified information,
(36:34):
and he's being treated very differently from Trump. Hillary Clinton,
I think, also engaged in wilful mishandling of classified information,
among other things they could have charged her with, and
she got a complete pass from what's essentially the same
Justice department. I mean, you know, the Obama Biden administration.
The Biden administration is just a continuation, particularly at the
(36:56):
Justice Department level of the Obama Biden administration. So you
have this one Justice department straddling over two administrations that
had these three cases. They gave Hillary a pass on
both classified documents and obstruction because a number of the
things that they bleach, bidded and destroyed was after they
(37:17):
got a congressional subpoena, and no one ever prosecuted for
them for that. I think if you go back over
what Comy famously said in his press conference, he almost
exclusively spoke about classified information and never even mentioned the
obstruction part of it. And there were other things they
could have brought against Hillary too, but they didn't. So
(37:40):
you have Trump has classified information and obstruction. They're charging him,
and they didn't just charge him. I mean, it's like
a forty count indictment that he could go to jail for.
You know, I guess three hundred years, four hundred years.
I lost count going through it. And then they give
Biden a complete pass, and they gave Hillary a complete pass.
And the thing with Biden, Lisa, which I'm really glad
(38:03):
you brought up, is, you know, if you find a
couple of things about HER's report, and he's going to
testify apparently I think on March twelfth, if I remember.
But you know, first of all, if her found that
he acted wilfully, which I think you know when you
read the report, the evidence doesn't admit of any other
(38:27):
sensible conclusion. As you pointed out, it's not easy as
a senator to get stuff out of a skiff that
you're not supposed to be as a senator, you're not
allowed to take the stuff, right. So the thing is
the statute that all this is brought under the espionajack,
(38:47):
even though it doesn't necessarily have to involve espionage. The
prongs of the espionajack don't require wilfulness. There's one of
them that only all you need is gross negligence. So
if you found wilfulness is the highest criminal intent UH
in the law, it requires it. It like almost defies
(39:10):
the old adage that ignorance of the law is no excuse.
I mean, you have to know what. What wilfulness means
is that you act with knowledge that what you're doing
is wrong, and you do it with a bad purpose.
So that's what you have to prove for wilfulness. For
gross negligence, you don't even have to prove intent. You
(39:31):
just have to prove that the person was careless, UH
in a in a really discreditable way with something that
the person had an obligation to safeguard. UH. The only
reason we allow does not there's not too many statutes
in the criminal law where you allow someone to be
convicted of gross negligence. But in the classified information context,
(39:54):
you're dealing with people who have to take an oath
that they're going to safeguard classified information and they're how
to do it. So if they don't follow that obligation,
they deserve to be prosecuted. Being saying I was careless
would be a defense to most criminal charges. It's not
a defense in classified information, it's a crime. So if
(40:15):
you're finding, as her did that Biden acted wilfully, you
could easily prove that he acted with gross negligence. That's
a layup. So it's very hard to say that you
shouldn't you can't bring a case like that, or you shouldn't.
And then the other thing is he justifies or rationalizes
(40:35):
not bringing the case because Biden is basically sinescent. He
says that he's a well meaning elderly man with a
bad memory. Well, you know, in the law, the question
isn't what is your state of mind? Now, the question
is what was your state of mind when you committed
the actions that were a crime. His current state of
(40:59):
mind goes to the important constitutional question of whether he's
fit to stand trial. That is, whether he's mentally competent
enough to meaningfully aid his defense and to understand the
nature of the proceedings. And I think Biden would easily
meet that standard. But you know, the idea that he's
(41:21):
currently in cognitive decline is not an issue. It's not
a guilt or innocence issue. You know, if he filched
a document, say in nineteen eighty five. The issue is like,
did he know what he was doing in nineteen eighty five,
not whether he knows what he's doing now. So I
(41:43):
found you know, I think Her is getting it from
both sides, and he probably I think he deserves it
from the right because you know, he basically pushed the
envelope as hard as you can push it to try
to rationalize not charging someone who who deserved to be charged,
or at least you can't charge a sitting president the
(42:05):
Justice Department guidance as you can and die a sitting president.
But he should at least have recommended an indictment. And
I have to say, I'm I find it precious that
the Democrats are upset that her put in his report
the reason why he didn't think that Biden should be charged.
(42:26):
They're going crazy because of how much that hurts him
politically in the campaign. But they're conveniently skipping past just
like they do with Hillary. They're conveniently skipping past that
the prosecutor decided not to prosecute him. You know, if
he recommended charges, that would have been the end of
Biden's candidacy.
Speaker 1 (42:44):
Quick break stay with us if you murder someone ten
fifteen years ago when you were looseid or you know,
and then now, I mean, it wouldn't matter if you
murder someone. You murder someone, and then now all of
a sudden, you're a well meaning, elderly old man, You're
still going to be, you know, tried and convicted of
that murder. And it's like, it's just so egregious what
(43:06):
Joe Biden did to have when you're hear in the
Senate as a vice president to continuously and repeatedly mishandled
classified documents and then tell your ghost writer in twenty
seventeen you have done so you don't feel like turning
them over, and then to look Americans in the face
on sixty minutes and ridicule and question your opponent's ethics.
(43:29):
And then two, I think as a president, you have
a much better argument of you know, having the ultimate
authority unhandling classified documents, declassifying and I know there's the
question of obstruction of justice or what have you that
people are making, but there's a much clearer argument. It's
a much more gray area for I believe a president
to say, hey, you know, I had the ultimate authority
(43:49):
here when you didn't as vice president. You sure is
held in as vice president, yet you know Trump's the
one that is, you know, getting screwed, right. I wanted
to or feel free to react to that, But I
also wanted to get you on before we go on
Fanny Willis and her actions out of Fulton County and
(44:10):
Fulton County and if that jeopardizes her case against Trumper
or what bearing that has on that.
Speaker 2 (44:16):
Yeah. The only other thing I'd add to what you
said about about the document's case is I've never been
overly impressed by Trump's argument that he was president so
he had declassification authority. That would be a thing if
he could prove that he actually declassified the stuff, And
(44:37):
it remains to be seen whether he can do that.
There's no evidence that he did.
Speaker 1 (44:42):
Can he just say like a fairy godmother of just
saying I want these documents or to class I mean,
doesn't can't just a president's I mean, can't he just
basically do whatever he wants when it comes to classified
documents as president of the United States?
Speaker 2 (44:57):
I don't think so. I mean, the presidential records at
which he is relying on, is it kind of a
two edge sword for him? Because one of the things
that requires is that presidential acts have to be documented,
and there's no documentary evidence that he ever declassified anything.
Declassification is actually a pretty important thing.
Speaker 1 (45:19):
Who would be in charge that? Sorry, I just want
to make sure that I'm full understanding. I'm not trying
to interrupt her. So who would be in charge?
Speaker 2 (45:28):
Right that?
Speaker 1 (45:29):
Surely that wouldn't be a president's responsibility to say, hey,
I'm writing this down and right wouldn't that be so?
I mean, I guess it just still seems like there
is ambiguity at least would would you say there's at
least some ambiguity in this where you know? It just
I don't know even in your description of it, which
(45:50):
you know. I trust your judgment, which is why you're
on the show. I think you're brilliant. It just seems
like there's still some you know, gray area, still some finesse,
still some you know what I mean, Like, there's just still.
Speaker 2 (46:01):
No, there's not clear there's gray area in the Presidential
Records Act. Now, on the obstruction side of it, there's
no gray area because he got a grand jury subpoena
that that didn't tell him to turn over the classified information,
because I guess they understood that he could make a
claim like that. So what the grand jury subpoena says
(46:22):
is turnover all documents that have physical classification markings. So
in that sense, whether he declassified or not is irrelevant.
And similarly, with respect to the classified information counts, they're
not actually classified information counts. That the Espionage Act doesn't
(46:44):
describe classified information. It says national defense information, So whether
it's classified and has been declassified as kind of beside
the point if the document is national defense information. So
they have comebacks on that. But what I was, what
I was trying to pivot to, was to say, the
(47:05):
barometer that her used, or the metric that her used
not to prosecute Biden under circumstances where Trump is being
prosecuted was cooperation. And that was preposterous because in our system,
people are expected to cooperate with investigators if you get
(47:26):
you know, if you get a subpoena, you're supposed to
produce the documents, and if you cooperate with the investigators,
that's an important thing to bring to the court's attention
at sentencing. But it has nothing to do with guilt
or innocence. So in this system, if you don't cooperate
with the investigation, you can be charged with obstruction. But
(47:46):
the fact that Biden, what her says, is Biden cooperated
and Trump didn't, that's a good reason to charge Trump
with obstruction. It's not a good reason to not charge
Biden with classified information counts. You know, the fact that
as you you talked about a murder before. If I
(48:07):
murder someone, but then I'm cooperative with the you know,
with the police, I waive my riots, I confess, I
do all the things they asked me to. They're not
going to say, well, you know, you were so cooperative,
we're not going to charge it with murder. They're still
going to charge me with murder.
Speaker 1 (48:20):
But do we believe that Joe Biden was cooperative in
the sense of he's had these documents since the nineteen seventies,
He's had them since he was vice president. He told
his ghost writer he knew he had them, he didn't
want to turn them over. They ended up in multiple locations. So,
I mean, do we really believe like, if that was
Trump in this situation, would he be you know what
(48:42):
I mean? I just I don't know. I don't believe
that he was cooperative.
Speaker 2 (48:46):
It doesn't he's not. He's not coalites for me, Well,
he's not cooperative in the cosmic sense. But in the
law enforcement sense, what you what you gauge cooperation on
is how did the guy I act after the police
you know, were onto him and after you know, he
(49:07):
was confronted with what he had done. So you're right,
I mean, there's decades of bad behavior, and the nature
of this is that he was uncooperative. But when you're
talking about cooperation in a law enforcement sense and whether
a court would give somebody credit for cooperating at sentencing,
what that deems with is the small window of time
(49:30):
between the time the police and the prosecutors confront the
person with his wrongdoing and then how does he act.
So what her is saying is when Biden, when this
problem erupted, of it being publicly known or at least
known to the Justice Department that Biden had hoarded classified information,
(49:52):
at that point, he cooperated with the investigators and allowed
the FBI, without having to get a search warrant or
anything else, to search his residence and so forth. Whereas
Trump fought the government for eighteen months and even when
he got a subpoena. You know, he defied the subpoena,
So that's what they mean by that. I'm not disagreeing
(50:12):
with you about the content. I think that, you know,
the conduct goes back for it.
Speaker 1 (50:15):
I think I've just I think I've just ated a
point where I don't trust them, and I don't trust that,
you know what I mean, Like they seem to have
given Biden more heads up than they did with I
just I don't know. I guess at this point, my
viewpoint of the government is so badly damaged, and my
distrust in Biden is so high that I just believe
(50:35):
at this point that like the rule of law doesn't
exist anymore, that we are an inherently corrupt nation. Uh,
and this administration is one of the most corrupt administrations
we've ever had. So I guess, I just I don't
believe anything that they tell us. And then even look
at hers report, who's supposed to be a good guy,
and you give Biden this ridiculous out that you know,
(50:58):
anyone with any sort of reasonable perspective, any level of objectivity,
you could say that's crazy.
Speaker 2 (51:06):
Yeah, well, I don't you know, if they hadn't done
you know, they Act. They obviously went you know, they
went crazy on the Trump case, and if they had
given Trump a pass, I don't think anybody would have
a lot of heartburn about you know, Biden getting a pass,
especially since nobody really expected him to be prosecuted anyhow.
(51:26):
But I do think to your point that if you're
going to play this two tiers of justice game and
they're unabashed about it now, they're completely unapologetic, as we
said before, you know, in New York, they're running for
office saying, you know, elect me, and I'm going to
get this guy. So I think the credibility of the
(51:50):
justice system depends on people's belief that they're going to
treat everybody the same, that we actually do have equal
detection of law, and we all know that, like you know, historically,
people who have connections do better than people who don't
have connections. But we've never had a situation where it's
as stark as it is today that if you have
(52:12):
a D after your name, you get one quality of justice,
and if you're Trump or a conservative Republican, you get
a very different You wouldn't even call it a quality
of justice, it's you basically get persecuted at least when
you have the Obama Biden Harris Justice Department, which we've
had for you know, twelve of the last sixteen years,
(52:35):
you know.
Speaker 1 (52:36):
And last question, and I appreciate you taking so much times.
It's hard to really go through this stuff quickly, you know,
because there's so much to it and there's so much complexity,
and I just I learned so much every time I
have you on. So I really appreciate you taking so
much time with us. The last thing I wanted to
ask before we go, So, I think politically the case
out of Fulton County has been badly damaged by Fanny
(52:58):
Willis and her actions, But legally has it been damaged
by her actions?
Speaker 2 (53:07):
Yeah? The thing that bonds me most about this, Lisa
is I think the problem with the Fulton County case
is the case. You know. I think that Fanny Willis's
actions are an add on that should make people who
were suspicious of this whole thing more confident in their suspicions.
(53:29):
That is that like, either you know, she's acting very
politically or she's incompetent. But the problem with the Fulton
County case is the case. The problem with the Fulton
County case is she's indicted nineteen people as if they
were an organization, whereas the fact of the matter is
(53:49):
the nineteen people she's indicted the only thing they've ever
done together is get indicted. You know, I think most
of the people didn't even know a good way to
say it, of the existence of of what some of
the others were doing. And the biggest problem she has,
and this goes to a very basic thing in the
criminal law that it frustrates me that people don't seem
(54:10):
to grasp when I think if this was a Democrat
who was in the hot seat, it would be the
first thing on everyone's mind, and that is to have
a conspiracy. In the criminal law, you have to A
conspiracy is an agreement by two or more people to
violate a law right. And the reason I make that
(54:33):
basic point is trying to overturn the result of an
election is not a crime. There's a process for trying
to overturn the result of an election in all fifty states.
Now you can in the course of let's say you
had nineteen people who agreed to try to overturn the election.
(54:56):
You don't have a conspiracy because that's not a crime.
You can't have in the criminal law. You can't have
an agreement to do something that's legal be charged as
a conspiracy. That's not to say that if you have
nineteen people who agree on a legal objective, that everything
they do in trying to accomplish it is legal. So
(55:16):
like if they went into you know, into if they
had unauthorized access into the voting database, as like one
scheme charges, that would be a crime, but that wouldn't
turn it into you know, that wouldn't turn a conspiracy
to overturn the result of the election into a crime.
It's just not one. So I think Fanny Willis may
(55:39):
be competent enough to understand this, and therefore she tried
to paper it over with rico. But you know, having
tried a lot of federal rico cases, you know, more
decades ago than I care to admit, she doesn't have
a rico because a rico a racketeering organization is something like,
(56:04):
for example, the Gambino family of the mafia, right where
everybody understands that they're associated with a particular organization and
the activities that they commit are in addition to enriching themselves,
they are conducted for the purpose of sustaining the existence
(56:26):
of the organization so that it continues to garner wealth
and power. Now, compare that to what we have here,
which is nineteen people, many of whom don't even know
each other or know of each other, and they don't
think of themselves as an organization. They don't think. They
(56:46):
didn't say, gee, let me join the enterprise of trying
to get the election overturned. And even if there was
such a thing, which is unrealistic, that endeavor was going
to end on jen January twentieth of twenty twenty one,
one way or the other. Either Trump was either they
were going to achieve the objective of getting the election
(57:08):
overturned or they weren't. But the organization was not one
that they were trying to sustain in time and space
so that it could gain more wealth and power. It
was going to disintegrate. So she doesn't have a conspiracy
and she doesn't have a recomb and as a result,
(57:28):
I've always thought this case was ridiculous. Now we find
that she's engaged in all kinds of what seemed to
be corrupt activities. The salacious stuff is one thing, and
it's what you know Obviously it gets Unfortunately, it's gotten
more attention than the infirmities of the cases gotten. But
(57:52):
I think in terms of her exposure, the thing that's
important is did she we misrepresent to the county that
she needed these funds to address a COVID backlog and
then she diverted some of the funds that she was given.
This is extra funding she was given to hire this
(58:14):
Wade guy who doesn't have any experience doing racketeering cases,
so that they clearly didn't need him for that purpose,
and she paid him more lavishly. He made even more
money than she makes as the boss of the office,
and so she diverted the funds for the COVID backlog
to pay him, and then she derived benefit from it
(58:36):
because they go off on these lavish vacations and in
the meantime it looks like they've lied potentially on sworn documents.
So they have ethical problems and they have potential fraud problems.
The reason I lay out the fraud in that way
is there's a federal statute that makes it a crime
(58:57):
if you are a state agency that gets government funding,
which the Fulton County District Attorney's Office does, to commit fraud,
you know, for example, to divert funding for your own purposes.
And you know, this is a delicious little detail to
probably end with, but fraud in federal law is a
(59:21):
racketeering predicate. So I don't know if she's got a
RICO case in Fulton County, but someone may end up
having a reco case against her, although a competent prosecutor
wouldn't charge it as a RICO because you don't try
to turn something into you know, an elaborate circus when
you have a statute like fraud that's perfectly serviceable to
(59:44):
the purpose. And what I've always said about Fanny Willis's
case is not that no wrongdoing necessarily took place, but
it should have been charges like eight different small crimes.
And you're seeing that from the fact that four p
people have pled guilty and not a single one of
them pled guilty to rico. Not a single one of
(01:00:05):
them is looking at a day in jail. So all
this was was basically she did the case that was
the dream case of the January sixth Committee. She got
a big splash for, you know, saying rico and connection
with Trump, because that makes him sound like a mafia
don But when push comes to show she doesn't have
(01:00:28):
a RICO and when she pled people out, they didn't
plead to RICO, and a normal competent prosecutor in a
racketeering case, the first cooperators who come in the door,
what you do is you make them plead guilty to
the RICO charge. You know, they get into court and
the judge says to them, what did you do to
make you guilty? And you say, I was involved in
(01:00:50):
a racketeering conspiracy. Here's what I did, Here's what President
Trump did, Here's what all these other people did. And
then if you get that, the reason prosecutors want that
is it convinces the public that you actually have a case,
and it makes your guilty pleading cooperators much more credible
(01:01:11):
in front of the jury than they'd are thewise be.
So if you actually have a RICO case, you make
those people plead guilty to rico. She made them plead
guilty to nonsense. And they're not even you know, for
a case where they said in the press release after
they announced it that our democracy was hanging by a thread.
We almost lost our country. We got four of the
(01:01:33):
main people have pled guilty and they're not doing a
day in jail. Some insurrection.
Speaker 1 (01:01:38):
Yeah, it's like the threat to democracy. People sure love
destroying it. Eddie McCarthy, I really appreciate your time. You
do such a great job breaking this all down and
just speaking from experience, and you really break it down
in such in such a meaningful way. So I just
really appreciate you taking the time to join the show
(01:02:00):
to do that for my audience and me.
Speaker 2 (01:02:02):
Thanks so much, Lisa, It's been a pleasure that.
Speaker 1 (01:02:04):
Was Andy McCarthy. Appreciate him taking so much time to
break down all those complicated issues. I appreciate you at
home for listening every Monday and Thursday, but you can
listen throughout the week. What do I think John Cassi
and my producer for putting the show together. Until next time.
It is abundantly clear that the Democrats twenty twenty four
playbook is to try to bankrupt Donald Trump and to
also send him to jail. We just saw that in
the New York City fraud case, where they're forcing Donald
Trump to pay three hundred and fifty five million dollars
in punitive damage, although he will appeal it. We also
(00:20):
see this in the numerous indictments that Donald Trump is facing,
the numerous trials that he has on his docket over
the next few months heading into the election. So where
does all of this stand, What are the merits of
these various indictments in these various cases that Donald Trump
is facing, what's the timeline of them, and what should
(00:43):
you know? Also, does the revelations that Joe Biden has
mishandled classified information from the nineteen seventies does that impact
the document's case against Donald Trump? And how does Fanny
Willis's behavior impact the Fulton case.
Speaker 2 (00:59):
All of this and.
Speaker 1 (01:00):
More with Annie McCarthy, who is a former Chief Assistant
US Attorney, contributing editor at National Review as well as
a Fox News contributor, and I believe always just does
a really brilliant job of objectively breaking down all this
complex information and putting it in layman's terms for the
rest of us. So stay tuned for any McCarthy. This
(01:21):
is a big episode. We're going to get into a lot,
a lot of detail. You're going to want to listen.
Stay tuned, Andy, I want to start with the New
York City the fraud case against Donald Trump. He's going
to have to pay three hundred and fifty five million
in damage. You've got billionaire business guys like Kevin O'Leary
(01:43):
saying that, look, if Trump is guilty, so is every
real estate developer in America. What do you make of
the merits of this judgment against Trump?
Speaker 2 (01:54):
Well, I think it violates the old manage, Lisa, that
the you know, the punishment supposed to fit the crime,
which is what we're you know, I'm saying crime. We're
talking about a civil context. But this really was treated
in punitive terms. It was treated as if it were
a criminal case. Right. So, but that is the principle
(02:15):
that we're supposed to to go by. And what's offensive
about this is that the penalty is just so out
of whack with what Trump did wrong here, of which
there is no this pretty significant evidence of inflation of assets.
So Leary may be right that this is a much
more widespread practice. Certainly, Donald Trump didn't invent it, and
(02:39):
that goes to, you know, one of his major defenses
that you know, unfortunately doesn't play as well well. I'm
what I'm talking about is his claim that he was
selectively prosecuted. And the way I would put that is
it plays much better as an atmospheric then it does
(03:01):
as a legal claim in the sense that not a
lot of people get their you know, either charges or
lawsuits against them thrown out because they've been selectively prosecuted.
But here what they did in New York was they
took what I regard as a monstrous statute in this context,
(03:23):
this New York Law sixty three twelve, their business law,
and it's really intended for consumer fraud type situations. It's
intended for circumstances where you have somebody or some business
that persistently engages in dishonesty in advertising and the like.
(03:50):
And what you have are you know, hundreds thousands, even
millions of consumers, each of whom you know, deals with
the company in a very limited way so that you know,
you pay a few bucks or maybe a little more
than that for a product or what have you, but
(04:13):
nobody has nobody's transaction is big enough that it's worth
suing over, right, So you can kind of see why
they would want to have a law to protect people
like that. It's almost like what happens in class actions,
where you know, they let a bunch of people who
no single one of them has enough of a harm
(04:34):
that it's worth going through the expense and aggravation of
having to file a lawsuit, so they let them all
sort of join together. These are usually driven by law firms,
and they sue somebody who has persistently engaged in some
kind of a fraudulent practice. But in Trump's case, it
(04:55):
doesn't make sense to apply this because you're not dealing
with a consumer fraud situation. Instead, you're dealing with high
stakes financial transactions in which both sides are sophisticated financial
actors who do their own due diligence. So you know,
(05:16):
Deutsche Bank does not say, oh, Donald Trump, let sure
will lend you five hundred million dollars as long as
you say that's what your assets are worth. Right, These
businesses do their own due diligence. They're in the risk business.
Speaker 1 (05:30):
Well, and banks not claiming that they're a victim, right
like they were happy with the way everything went, so
that they're not you know, they're not saying they're a
victim in any of this.
Speaker 2 (05:40):
Yeah, well that's that's just the thing. There is no victim, uh,
And that is probably I think why this case bothers
people as much as it does. You know, in a
fraud case in the US Attorney's office where I worked,
we had standard words where if a fraud wasn't above
(06:04):
ten thousand dollars, we wouldn't do the case even if
there was a victim, because it's simply, you know, you
have sparse resources in a prosecutor's office, and for the
to get the public the bank for their buck, you
need to take cases that are more serious than that.
And if they're less serious than that, you know, you
rely on people to be able to go sue in
(06:25):
small claims court or maybe the state will take a case.
But we wouldn't even think about taking a fraud case
unless there either were victims or we could prove ironclad
that if people weren't victims, at least there was a
conspiracy to make them victims, Like there was a clear
intent to defraud people. And in this statute, because it's
(06:50):
made it's designed to make it easier for consumers in
a consumer fraud situation to get some recompense. They don't
require proof either of fraudulent intent or that there were
any victims. So you can easily see how somebody who
(07:11):
actually hasn't done anything. I don't want to say he
didn't do anything wrong, because even if you're dealing with
a counterparty who's a sophisticated financial actor, you're supposed to
act in good faith and you're supposed to, you know,
give as accurate an evaluation of your assets that they
are relying on in the transaction as you can. But
(07:35):
you know, if you don't have a victim, then ordinarily
prosecutorial discretion would say, you know, we should move on
to a case where there are victims, because you know,
we're stewards of the public fisk and if you're going
(07:56):
to use the public's law enforcement resources, ought to be
in cases where a harm, you know, real harm was
done and that obviously didn't happen here, you know.
Speaker 1 (08:07):
And it's interesting too, because Governor Hocal is obviously concerned
about the optics of this of any you know, real
estate developers, any you know, any business owners wanted to
do business in the state and in the city of
New York. Again, she said in a radio interview that
this is just a really extraordinary unusual circumstance. Obviously, that
(08:28):
extraordinary unusual circumstances Trump.
Speaker 2 (08:33):
You know, I guess what.
Speaker 1 (08:34):
Is the left done in its efforts to get Trump?
But I mean, it seems like a lot of norms
have been destroyed. The rule of law has been destroyed.
You know, I guess what does that mean?
Speaker 2 (08:47):
More broadly, Well, yeah, I think that the fundamental assumption
of Trump's biggest critics is that they can construct a
law that is as you know, the Latin phrase goes
in the law suy generous. That is that it's a
(09:08):
law that applies only to Trump. That these are you know,
that he's a singular threat to the country. And therefore
all of these precedents that they set and all of
these prosecutions that they've waged, don't set precedents that could
be applied against anyone else, because this is just Trump law.
(09:30):
This is only for him. And the fact is that
just things don't work that way, you know, I remember
when I was a prosecutor doing terrorism cases, you know
a lot of people wanted to because they wanted to
show that the courts worked against terrorism, even though it's
(09:51):
a different kind of an animal to deal with than
regular crime. You know, you wanted to be able to
cut corners in terms of what you needed to prove
in order to hold these guys accountable. And you wanted
to cut down their due process rights to discovery the
case because that would create all kinds of you know,
(10:12):
giving them our intelligence creates all kinds of other national
security threats. And you know the problem with all of
that is those precedents apply in other cases. So if you,
you know, if you would trit due process in a
terrorism case, those principles are no longer just going to
(10:32):
apply in terrorism. They're going to apply across the board,
because it's either just or it isn't. And the same
thing is true with respect to what they're doing with Trump.
In this case, it's okay to take a consumer fraud
statute that wasn't intended to apply to someone like Trump
and apply it to someone like Trump. And the fact is,
(10:53):
as far as the left is concerned, he's not a
unique threat. He may be the personal and bodiment of
everything they hate, but there's a lot of stuff they hate,
you know. They hate gun manufacturers, they hate fossil fuels,
they hate, you know, all kinds of stuff. And if
anyone thinks that they would hesitate to use against their
(11:15):
other political enemies the principles that they've now gotten blessed
in court by using them against Trump, I think you're
just crazy, and I think you're operating under norms that
no longer apply. You know, when I was a prosecutor
in New York, and when I was a New Yorker
growing up, the legal culture in New York was that
(11:38):
you would never run for office saying if you elect me,
I will use the power of the state against our
political enemies, because that would be disqualifying, you know, the
whole idea that a prosecutor would do anything other than
uphold the law in an even handed way without fear
or favor. If you departed from that line, you would
(12:00):
not qualify to have the job. But I think in
the last twenty years, as progressives have gotten a sort
of a power clamp on a lot of these blue cities,
the thing people, the thing people need to come to
terms with is. Progressives are not as offended as most
people are by the idea that you use the tools
(12:24):
and processes of the state in a punitive way. They
think that that's part of the way that you advance
the cause. So, for example, Letitia James, the state attorney
general who prosecuted Trump. She ran for office promising that
if you elect me, I will use my power against Trump.
(12:45):
He's going to know what my name was or what
my name is. That's what she said in her advertisements.
I think Lisa that she won by maybe thirty points,
maybe forty points. So I think people have to come
to grips with the fact that it's not just that
the legal culture has changed. The culture has changed. It
didn't used to be the case that in New York
(13:07):
that people would want to elect that kind of a
person to wield power. It used to be that somebody
who in a very kind of Soviet way said to you,
you know, show me the man and I'll find the
crime that was disqualifying. Now that person wins in a landslide, we've.
Speaker 1 (13:24):
Got to take a quick commercial break. More with any
McCarthy on the other side, it's scary about where we've arrived.
And the irony too is they could end up bankrupting
the state and the process in the sense of I
think there's already been ten billionaires in a four year
period of time that have left New York for Florida,
and I imagine that more are going to be leaving,
(13:46):
you know, the state that's so reliant upon the one
percent to pay I think something like forty two percent
of the state's tax receipts.
Speaker 2 (13:52):
So I used to know that. I used to know
that stat better than I do now. But I do
know that the number of people who pay the lion's
share of taxes, especially in New York City, is infinitesimally
small compared to the population. And I think one of
the fallouts of COVID was a lot of those people
(14:14):
who were in finance realized that they didn't need to
be in New York to do business. And that's that's
hurt the city in a big way.
Speaker 1 (14:24):
Absolutely.
Speaker 2 (14:26):
You know.
Speaker 1 (14:26):
So Trump is also facing you know, a lot of indictments,
He's got different trials coming up. Can you kind of
take us through sort of the timing and the sequencing
of what he is facing over the next few months
and what we should be living.
Speaker 2 (14:42):
Yeah, it's a moving target. So the original thing that
Jack Smith, everybody kind of who was involved in this
on the on the get Trump side, was expecting that
the federal prosecutions were going to go first, especially the
elect interference case that was brought by the Biden administration
(15:05):
special prosecutor or special counsel Jack Smith. That's the one
they were all banking on. And I think the reason
for that is that case is deemed to be I
think a proxy for the impeachment that they never got
done because the impeachment investigation that was done in connection
(15:25):
with Trump post capital riot was incompetent. So they ended
up charging him with something that certainly in a court
of law, you couldn't prove he didn't, you know, incitement
to insurrection. He didn't commit the crime of incitement. And factually,
speaking to my mind, this wasn't close to being what
an insurrection is. And I thought that there was a
(15:48):
valid impeachment case that you could have made against Trump,
but they never made it and they didn't investigate it.
And then they had the January sixth Committee, which kind
of did what was supposed to be the impeachment investigation
of Trump except it was so partisan and one sided,
(16:11):
and it was so dedicated to the proposition of being
kind of a political ad rather than an actual set
of hearings where you try to get at the truth
that it really didn't have bipartisan credibility. But they've always wanted,
you know, a knockout blow against Trump over the Capitol
(16:32):
riot and what led up to it, which is what
Jack Smith and his election interference prosecution in Washington is
the problem with that. There's many problems with that case,
But what to say with the timeline, which is what
you asked me about what he was trying to do,
which would be a major due process violation if it
(16:53):
was done to anyone else. But this, again, this is
like Trump justice, so they figured they could get away
with it. Is he first indicted Trump for the Mara
Lago documents and got Trump locked into a trial with
a date of May twentieth. Now, a lot of us,
myself included, who've actually prosecuted classified information cases, thought that
(17:19):
that was an utterly unrealistic trial date because classified information
cases are very hard to get to trial, even if
you're trying hard. But Smith's idea was to get him
locked into that May twentieth trial, and then after he indicted.
After he indicted that, then he indicted the election interference
(17:41):
case and talked Judge Tanya Chuckkin, who's an Obama appointee
who's presiding over that case in Washington. He talked her
into a March fourth trial date. So what people need
to understand about what Smith was trying to accomplish there
is that, unlike these civil cases that we've watched, where
Trump had the option to show up or not and
(18:04):
he could pretty much come and go as he pleased,
in a criminal case, the defendant has to be there
for every moment of the trial. And these cases that
Smith is talking about, Lisa, are two to three month
estimate trials. So his idea was to have the Republican
candidate for the presidency basically tethered to courtrooms from early
(18:28):
March into August during the campaign, and then assuming that
he got him convicted in the first case, by the
time August came around, it would be time for sentencing
in that case, you know, after the second trial had
taken place. So their idea was to basically keep him
in court for you know, four to six months and
(18:48):
then get him sentenced and if he gets convicted on
in the Washington case, the sentence would clearly be I
don't know if the judge would actually put him in prison,
but those what he's charged them there with calls for
prison time. So that was the way they set the table.
(19:10):
And the problem that Smith immediately ran into is the
May twentieth day for the classified documents was completely unrealistic.
That case I don't think has a chance of going
prior to the election. If you want, we can get
into why it's so hard to get one of those
cases to trial. But more to the point the Washington case,
(19:35):
Trump ended up raising immunity in these pre trial motions.
I don't know whether they really thought that they were
going to win on immunity. But the reason that immunity
is so important to a defendant in Trump's position is
it's one of the few issues in federal criminal law
(19:55):
that you're allowed to appeal pre trial. Most things to
come up in a federal criminal case you have to
get you have to take the trial judge's rulings, and
then the case gets tried, and if the guy gets convicted,
he gets sentenced, and then the whole case goes up
to the Court of Appeals. You don't get to appeal
stuff prior to trial, but there are some issues like
(20:18):
double jeopardy and immunity where the offense is deemed to
be having the trial in the first place, and those
things you're allowed to appeal pre trial. So this was
important to Trump because Trump's goal here is delay. He
wants to push, especially the federal prosecutions against him, beyond
(20:39):
election day because if he wins the election, then his
nominee will be running the Justice Department and they can
simply dismiss they can fire Smith and dismiss the cases
against him. He doesn't even you know, all this stuff
about will Trump pardon himself In theory, he wouldn't even
have to pardon himself because they'd be running the Justice Department.
But he could pardon himself if the court gave the
(21:01):
Trump Justice Department a hard time about dismissing these cases.
But in any event, that was his you know, that's
what his objective is. So the immunity case, the immunity
claim has been has pushed the March fourth trial date
off the calendar because first the case went to the
(21:22):
Court of Appeals to d C Circuit and even though
Trump lost there. He's now appealed to the Supreme Court.
And the rule of the road in federal criminal prosecution
is you're always in one court at a time. So
if the case is on appeal, Judge Chuckkin doesn't have
any jurisdiction to do anything in the district court, so
(21:43):
that case is frozen.
Speaker 1 (21:44):
Now.
Speaker 2 (21:44):
They're not even making motions or doing discovery or doing anything,
which has has Smith frustrated because even though this is
against Justice Department policy, he's being driven by the political calendar.
He wants to get this case tried prior to election day,
which is what the plan always was. So now because
(22:07):
the Feds have not been able to hold their calendar
and have the trials in you know, starting in the
spring that they thought they were going to have, you know,
March fourth, and then May twentieth, since that opened up
the calendar from March, we go back to the Alvin
Bragg prosecution against Trump for the hush money deal. He Bragg,
(22:32):
who is the prosecutor who won't prosecute in New York.
He's like the poster trial for progressive prosecutors. If you're
a hardened criminal in New York, you have a very
good chance of either not being prosecuted at all or
having your felonies pleaded down to misdemeanors. But if you're Trump,
they take what should be at most one misdemeanor business
(22:55):
records misstatement in fraction, and he turns it into thirty
four felonies for which Trump could go to jail for
over a century in theory. But when he was the
first prosecutor to bring an indictment against Trump, that was
in the spring, I believe of last year. And at
that point the judge won March on, who's a Democrat,
(23:19):
set the trial for March twenty fifth of twenty twenty four,
and it didn't look like that case was actually going
to go because Bragg said that he would defer to
the Feds, and he was hoping, as all the Democrats
were hoping, that Jack Smith was going to get his
case to trial in Washington on March fourth. Since that's
(23:40):
now not going to happen, it looks like the Bragg
cases back on the docket and it will go first
on March twenty fifth.
Speaker 1 (23:49):
And how long does a case like that take, you know,
like how long from start to finish to something like that?
Normally take.
Speaker 2 (23:56):
Yeah, so that's a great question. I you know, I'm
in my career as a prosecutor. I actually prosecuted the
longest federal criminal trial in American history. I was one
of five prosecutors on the team, the junior member, which
was a seventeen month trial, and I also had a
(24:17):
nine month trial while I was a prosecutor, and I
over time, I basically developed a theory that if the
prosecutor tells you that the case is going to take
something longer than four to six weeks, that's a kind
of a shorthand way of telling you they don't have
any idea how the hell long it's going to take.
Because you can't predict a trial. A lot of stuff
(24:38):
happens at trial that you just can't predict ahead of time,
and if it gets beyond a sort of a finite horizon,
it becomes very hard to gauge how long these cases
are going to take. The hush money case is a
pretty finite affair, and they're predicting that that would take
like two to four weeks. You have to give a
(25:02):
little bit of rhythm and the timing when you're dealing
with Trump, because it's going to be very you know,
they may take a week just to pick a jury,
and there's a lot of work that has to go
into trying to you know, get a jury that satisfies
both sides that it's that it's fair and impartial, or
you know, satisfies them as much as they're going to guess.
Speaker 1 (25:22):
I guess what I'm trying to figure out is what's
the probability that he could be convicted on some of
these indictments before election day?
Speaker 2 (25:34):
Okay, So I think there's now a high probability that
he will be convicted in Manhattan, and I can I
can go through why I believe that's the case. I'm
not sure that will hurt him politically that much. Of course,
if he got a jail sentence, that would that would matter.
But I think politically the Democrats should not want to
(25:56):
start with the hush money case because it's an objectively
ridiculous case and New York has already demonstrated, between you know,
the e Gene Carroll civil cases and now this this
civil fraud case, I think the public pretty much figures
that New York is rigged against Trump. So I think
this case is almost It's easy for me to say
(26:18):
because you know, I'm not I'm not. I don't have
any prison exposure. But I think the New York case
is almost like a no lose proposition for Trump in
the sense that if he beats the case, he's got
a very strong argument that this whole law fair thing
is a is a part is in witch hunt, which
is what he said all along, and if he loses
(26:38):
the case, it's good people A lot of people are
just going to dismiss it as you know, Oh, there
goes New York again, because the case is objectively ridiculous.
The case where he really has the biggest risk I
think of a conviction pre trial, and this depends on
again whether they can get it to trial is Smith's
Washington case. And the the thing that I didn't add
(27:01):
that is the wild card in terms of whether that
case can go to trial or not is even though
I think Trump is going to lose on immunity before
the Supreme Court, immunity has kind of already served its
purpose for Trump because he's gotten all this delay out
of the appeal of it. And what happened in the
(27:22):
interim Lisa is the Supreme Court announced a few weeks
ago that they would hear the challenge of a number
of the January sixth defendants, not Trump, to the Justice
Department's very controversial use against them of an obstruction statute
(27:43):
that's really intended for obstruction in business fraud cases like
things like shredding documents and the like, and the Justice
Department has used it against the Capital rioters. And what
they're arguing is this is not the use that Congress
intended for this statute. The reason it's so important is
(28:06):
the Washington indictment brought by Smith against Trump has four counts.
The two most important counts of the case and the
two that would have the heaviest sentence if he were
to get convicted, are obstruction counts brought under this same statute,
which means, as a practical matter, I don't think Judge
(28:26):
Chuckkin can start the trial of Trump in Washington until
the Supreme Court rules on the obstruction case or the
obstruction statute in connection with the January sixth defendants. They're
not going to rule, they're not going to hear argument
in that case until I think April, maybe around April
(28:49):
fifteenth or April sixteenth, So we're not going to get
a decision in that case until the end of June
more than likely, and depending on how that case goes,
it could be possible that the court upholds the use
of the statute the way the Justice Department's been doing it,
or it could be that Smith has to do major
(29:11):
surgery on his case, in which case he'll have to
supersede the indictment. You know. Dependent Trump of course hopes
that it's such a momentous decision in favor of people
who are challenging the statute that it will dismantle Smith's
case and he won't be able to bring it. But
we'll have to see what the Supreme Court does. The
only thing I would say in anticipation of it is
(29:36):
I believe the use of this obstruction statute against Trump
is much more problematic for the prosecutor than the use
of it against the Capital rioters, because what the obstruction
case comes down to is what does the statute mean
by corrupt obstruction. What the statute says is it's anybody
(29:57):
who obstructs a proceeding, including a congres rational proceeding, by
corrupt activity. And corrupt is a very vague word. It's
a very ambiguous word because there's a lot of stuff
that we do that's corrupt that's actually not illegal, right,
And there's a lot of stuff that you do that's
corrupt that is illegal. So it seems to me that
(30:19):
with that statute, it makes a lot more sense to
apply it to somebody who, say, takes a flagpole and
hits a police officer during the Capitol riot than it
is to apply it to Trump, who is not charged
in a violent crime. And the obstruction theory that Smith
has is that Trump relied on a kakamami legal theory
(30:43):
that he knew that Trump supposedly knew was invalid, that
the vice president had the authority to discount state certified
electoral votes. I think Trump's going to have a very
strong argument that that it's not what Congress had in
mind when they enacted that obstruction statute. But I dilate
(31:05):
on this because it's probably the most important thing in
response to the question you asked me, which is if
Trump does Trump run a risk of a very serious
criminal conviction prior to election day? And the only way
I can answer that is if the Supreme Court leaves
Smith's case intact and the case can get tried starting
(31:30):
in say July, then I think Trump runs a very
high risk of being convicted.
Speaker 1 (31:38):
Quick break more on all these indictments stay with us.
You know, you mentioned the sort of stretching of the
obstruction for the January six ers. I mean, there seems
to be a lot of that when you look at
you know, brags sort of turning a misdemeanor into a
felony that's already passed the Statute of Limitations or you know,
Fulton County, en Rico, or you know, I mean, there
(31:58):
just seems to be a lot of stretching of the
law and maneuvering of the law, and you know, and
you know, just taking a lot of what's the right word,
taking a lot of blanking on the right word. But well,
they're taking liberty exactly, denial to deny ones, liberty, to
(32:19):
deny liberty.
Speaker 2 (32:20):
Well, I'll say if I could say one thing about
that though, which is the elephant in the room, so
to speak. You know, it's been against the law of
the United States since eighteen seventy to commit insurrection, and
one hundred one thousand, two hundred and sixty people I
believe have been prosecuted so far by the Justice Department
(32:42):
in connection with the quote unquote insurrection of January sixth.
Not a single person, not just Trump, not a single
person has been charged with insurrection. And you wouldn't have
to have extravagant theories about obstruction and civil rights and
fraud and rico and turning you know, a business records
(33:07):
faux pas into thirty four felonies. You wouldn't have to
do any of that stuff if they had just a
nice clean of insurrection case. Insurrections a federal criminal statute
section I think twenty three eighty three of the Criminal Code.
It's been on the books, as I said, for like
a century and a half. If they had an insurrection case,
(33:29):
all of these problems go away. You just charge a
guy with insurrection, prove it beyond a reasonable dabt a trial.
Why do you figure the Justice Department's never done.
Speaker 1 (33:38):
That because it ain't it.
Speaker 2 (33:41):
They don't have it. You know, if they had it,
this would be the easy you know, the shortest distance
between two points is still a straight line, you know,
insurrections the straight line here. If they had the case,
then all of this goes away, and none of us
would be defending Trump on insurrection if they if he
had actually done an insurrection. If they had been an
insurrection and he commanded it in some way that they
(34:04):
could prove by evidence, I'd offer to come out of
retirement to prosecute the case myself. But they don't have
the case. That's the problem they've always had, well.
Speaker 1 (34:14):
You know, and this just frustrates me so much because
I hate things that are unfair and an unequal application
of things. You know, I'm all for, Like, you know,
I felt that way about Parah, Like, Okay, fine, I
don't want people doing business with foreign countries and not
you know, being open and transparent about it here in
the United States. But like, if you're not going to
go after everyone, then you know, go fly a kite. Right.
(34:34):
But with all this Trump stuff, it's only it always
goes in one direction, you know. I wanted to ask you,
does in the in the documents case for Trump, does
the fact that the special counsel and Biden's own Department
of Justice found that he's willfully mishandled classified documents since
(34:55):
the nineteen seventies, By the way, when you're a senator,
which takes a real effort to do that, to try
to take documents out of the skiff which I imagine
is what ultimately happened, or when he was vice president,
when he didn't even have the classification authority that Trump
did as president, does that impact that case at all?
Does it take the teeth out of the case, the
(35:17):
fact that you know, seems like everybody's doing it, but
only one man is being persecuted for it.
Speaker 2 (35:24):
Well, I do think that, you know, one of the
things that Trump is going to raise, and this goes
to an issue that we started to talk about at
the beginning, which is a selective prosecution claim. And I
think he's got a very good selective prosecution claim because
the case in ma A Lago is mishandling of classified
information coupled with obstruction. And I think actually the Justice
(35:49):
Department and Smith were foolish on this score. They shouldn't
have been, you know, they indicted like three dozen classified
information counts. They should have they should have tried this
case as as straight obstruction, charged it and tried it
as a straight obstruction grand jury obstruction case, and Smith
might have had a chance to get that case to
(36:10):
trial rather than what's now happened to him, which is
these all hung up on these admissibility issues in connection
with classified information. But the reason I think he's got
a good that Trump has a good selective prosecution claim
is Biden clearly engaged in wilful mishandling of classified information,
(36:34):
and he's being treated very differently from Trump. Hillary Clinton,
I think, also engaged in wilful mishandling of classified information,
among other things they could have charged her with, and
she got a complete pass from what's essentially the same
Justice department. I mean, you know, the Obama Biden administration.
The Biden administration is just a continuation, particularly at the
(36:56):
Justice Department level of the Obama Biden administration. So you
have this one Justice department straddling over two administrations that
had these three cases. They gave Hillary a pass on
both classified documents and obstruction because a number of the
things that they bleach, bidded and destroyed was after they
(37:17):
got a congressional subpoena, and no one ever prosecuted for
them for that. I think if you go back over
what Comy famously said in his press conference, he almost
exclusively spoke about classified information and never even mentioned the
obstruction part of it. And there were other things they
could have brought against Hillary too, but they didn't. So
(37:40):
you have Trump has classified information and obstruction. They're charging him,
and they didn't just charge him. I mean, it's like
a forty count indictment that he could go to jail for.
You know, I guess three hundred years, four hundred years.
I lost count going through it. And then they give
Biden a complete pass, and they gave Hillary a complete pass.
And the thing with Biden, Lisa, which I'm really glad
(38:03):
you brought up, is, you know, if you find a
couple of things about HER's report, and he's going to
testify apparently I think on March twelfth, if I remember.
But you know, first of all, if her found that
he acted wilfully, which I think you know when you
read the report, the evidence doesn't admit of any other
(38:27):
sensible conclusion. As you pointed out, it's not easy as
a senator to get stuff out of a skiff that
you're not supposed to be as a senator, you're not
allowed to take the stuff, right. So the thing is
the statute that all this is brought under the espionajack,
(38:47):
even though it doesn't necessarily have to involve espionage. The
prongs of the espionajack don't require wilfulness. There's one of
them that only all you need is gross negligence. So
if you found wilfulness is the highest criminal intent UH
in the law, it requires it. It like almost defies
(39:10):
the old adage that ignorance of the law is no excuse.
I mean, you have to know what. What wilfulness means
is that you act with knowledge that what you're doing
is wrong, and you do it with a bad purpose.
So that's what you have to prove for wilfulness. For
gross negligence, you don't even have to prove intent. You
(39:31):
just have to prove that the person was careless, UH
in a in a really discreditable way with something that
the person had an obligation to safeguard. UH. The only
reason we allow does not there's not too many statutes
in the criminal law where you allow someone to be
convicted of gross negligence. But in the classified information context,
(39:54):
you're dealing with people who have to take an oath
that they're going to safeguard classified information and they're how
to do it. So if they don't follow that obligation,
they deserve to be prosecuted. Being saying I was careless
would be a defense to most criminal charges. It's not
a defense in classified information, it's a crime. So if
(40:15):
you're finding, as her did that Biden acted wilfully, you
could easily prove that he acted with gross negligence. That's
a layup. So it's very hard to say that you
shouldn't you can't bring a case like that, or you shouldn't.
And then the other thing is he justifies or rationalizes
(40:35):
not bringing the case because Biden is basically sinescent. He
says that he's a well meaning elderly man with a
bad memory. Well, you know, in the law, the question
isn't what is your state of mind? Now, the question
is what was your state of mind when you committed
the actions that were a crime. His current state of
(40:59):
mind goes to the important constitutional question of whether he's
fit to stand trial. That is, whether he's mentally competent
enough to meaningfully aid his defense and to understand the
nature of the proceedings. And I think Biden would easily
meet that standard. But you know, the idea that he's
(41:21):
currently in cognitive decline is not an issue. It's not
a guilt or innocence issue. You know, if he filched
a document, say in nineteen eighty five. The issue is like,
did he know what he was doing in nineteen eighty five,
not whether he knows what he's doing now. So I
(41:43):
found you know, I think Her is getting it from
both sides, and he probably I think he deserves it
from the right because you know, he basically pushed the
envelope as hard as you can push it to try
to rationalize not charging someone who who deserved to be charged,
or at least you can't charge a sitting president the
(42:05):
Justice Department guidance as you can and die a sitting president.
But he should at least have recommended an indictment. And
I have to say, I'm I find it precious that
the Democrats are upset that her put in his report
the reason why he didn't think that Biden should be charged.
(42:26):
They're going crazy because of how much that hurts him
politically in the campaign. But they're conveniently skipping past just
like they do with Hillary. They're conveniently skipping past that
the prosecutor decided not to prosecute him. You know, if
he recommended charges, that would have been the end of
Biden's candidacy.
Speaker 1 (42:44):
Quick break stay with us if you murder someone ten
fifteen years ago when you were looseid or you know,
and then now, I mean, it wouldn't matter if you
murder someone. You murder someone, and then now all of
a sudden, you're a well meaning, elderly old man, You're
still going to be, you know, tried and convicted of
that murder. And it's like, it's just so egregious what
(43:06):
Joe Biden did to have when you're hear in the
Senate as a vice president to continuously and repeatedly mishandled
classified documents and then tell your ghost writer in twenty
seventeen you have done so you don't feel like turning
them over, and then to look Americans in the face
on sixty minutes and ridicule and question your opponent's ethics.
(43:29):
And then two, I think as a president, you have
a much better argument of you know, having the ultimate
authority unhandling classified documents, declassifying and I know there's the
question of obstruction of justice or what have you that
people are making, but there's a much clearer argument. It's
a much more gray area for I believe a president
to say, hey, you know, I had the ultimate authority
(43:49):
here when you didn't as vice president. You sure is
held in as vice president, yet you know Trump's the
one that is, you know, getting screwed, right. I wanted
to or feel free to react to that, But I
also wanted to get you on before we go on
Fanny Willis and her actions out of Fulton County and
(44:10):
Fulton County and if that jeopardizes her case against Trumper
or what bearing that has on that.
Speaker 2 (44:16):
Yeah. The only other thing I'd add to what you
said about about the document's case is I've never been
overly impressed by Trump's argument that he was president so
he had declassification authority. That would be a thing if
he could prove that he actually declassified the stuff, And
(44:37):
it remains to be seen whether he can do that.
There's no evidence that he did.
Speaker 1 (44:42):
Can he just say like a fairy godmother of just
saying I want these documents or to class I mean,
doesn't can't just a president's I mean, can't he just
basically do whatever he wants when it comes to classified
documents as president of the United States?
Speaker 2 (44:57):
I don't think so. I mean, the presidential records at
which he is relying on, is it kind of a
two edge sword for him? Because one of the things
that requires is that presidential acts have to be documented,
and there's no documentary evidence that he ever declassified anything.
Declassification is actually a pretty important thing.
Speaker 1 (45:19):
Who would be in charge that? Sorry, I just want
to make sure that I'm full understanding. I'm not trying
to interrupt her. So who would be in charge?
Speaker 2 (45:28):
Right that?
Speaker 1 (45:29):
Surely that wouldn't be a president's responsibility to say, hey,
I'm writing this down and right wouldn't that be so?
I mean, I guess it just still seems like there
is ambiguity at least would would you say there's at
least some ambiguity in this where you know? It just
I don't know even in your description of it, which
(45:50):
you know. I trust your judgment, which is why you're
on the show. I think you're brilliant. It just seems
like there's still some you know, gray area, still some finesse,
still some you know what I mean, Like, there's just still.
Speaker 2 (46:01):
No, there's not clear there's gray area in the Presidential
Records Act. Now, on the obstruction side of it, there's
no gray area because he got a grand jury subpoena
that that didn't tell him to turn over the classified information,
because I guess they understood that he could make a
claim like that. So what the grand jury subpoena says
(46:22):
is turnover all documents that have physical classification markings. So
in that sense, whether he declassified or not is irrelevant.
And similarly, with respect to the classified information counts, they're
not actually classified information counts. That the Espionage Act doesn't
(46:44):
describe classified information. It says national defense information, So whether
it's classified and has been declassified as kind of beside
the point if the document is national defense information. So
they have comebacks on that. But what I was, what
I was trying to pivot to, was to say, the
(47:05):
barometer that her used, or the metric that her used
not to prosecute Biden under circumstances where Trump is being
prosecuted was cooperation. And that was preposterous because in our system,
people are expected to cooperate with investigators if you get
(47:26):
you know, if you get a subpoena, you're supposed to
produce the documents, and if you cooperate with the investigators,
that's an important thing to bring to the court's attention
at sentencing. But it has nothing to do with guilt
or innocence. So in this system, if you don't cooperate
with the investigation, you can be charged with obstruction. But
(47:46):
the fact that Biden, what her says, is Biden cooperated
and Trump didn't, that's a good reason to charge Trump
with obstruction. It's not a good reason to not charge
Biden with classified information counts. You know, the fact that
as you you talked about a murder before. If I
(48:07):
murder someone, but then I'm cooperative with the you know,
with the police, I waive my riots, I confess, I
do all the things they asked me to. They're not
going to say, well, you know, you were so cooperative,
we're not going to charge it with murder. They're still
going to charge me with murder.
Speaker 1 (48:20):
But do we believe that Joe Biden was cooperative in
the sense of he's had these documents since the nineteen seventies,
He's had them since he was vice president. He told
his ghost writer he knew he had them, he didn't
want to turn them over. They ended up in multiple locations. So,
I mean, do we really believe like, if that was
Trump in this situation, would he be you know what
(48:42):
I mean? I just I don't know. I don't believe
that he was cooperative.
Speaker 2 (48:46):
It doesn't he's not. He's not coalites for me, Well,
he's not cooperative in the cosmic sense. But in the
law enforcement sense, what you what you gauge cooperation on
is how did the guy I act after the police
you know, were onto him and after you know, he
(49:07):
was confronted with what he had done. So you're right,
I mean, there's decades of bad behavior, and the nature
of this is that he was uncooperative. But when you're
talking about cooperation in a law enforcement sense and whether
a court would give somebody credit for cooperating at sentencing,
what that deems with is the small window of time
(49:30):
between the time the police and the prosecutors confront the
person with his wrongdoing and then how does he act.
So what her is saying is when Biden, when this
problem erupted, of it being publicly known or at least
known to the Justice Department that Biden had hoarded classified information,
(49:52):
at that point, he cooperated with the investigators and allowed
the FBI, without having to get a search warrant or
anything else, to search his residence and so forth. Whereas
Trump fought the government for eighteen months and even when
he got a subpoena. You know, he defied the subpoena,
So that's what they mean by that. I'm not disagreeing
(50:12):
with you about the content. I think that, you know,
the conduct goes back for it.
Speaker 1 (50:15):
I think I've just I think I've just ated a
point where I don't trust them, and I don't trust that,
you know what I mean, Like they seem to have
given Biden more heads up than they did with I
just I don't know. I guess at this point, my
viewpoint of the government is so badly damaged, and my
distrust in Biden is so high that I just believe
(50:35):
at this point that like the rule of law doesn't
exist anymore, that we are an inherently corrupt nation. Uh,
and this administration is one of the most corrupt administrations
we've ever had. So I guess, I just I don't
believe anything that they tell us. And then even look
at hers report, who's supposed to be a good guy,
and you give Biden this ridiculous out that you know,
(50:58):
anyone with any sort of reasonable perspective, any level of objectivity,
you could say that's crazy.
Speaker 2 (51:06):
Yeah, well, I don't you know, if they hadn't done
you know, they Act. They obviously went you know, they
went crazy on the Trump case, and if they had
given Trump a pass, I don't think anybody would have
a lot of heartburn about you know, Biden getting a pass,
especially since nobody really expected him to be prosecuted anyhow.
(51:26):
But I do think to your point that if you're
going to play this two tiers of justice game and
they're unabashed about it now, they're completely unapologetic, as we
said before, you know, in New York, they're running for
office saying, you know, elect me, and I'm going to
get this guy. So I think the credibility of the
(51:50):
justice system depends on people's belief that they're going to
treat everybody the same, that we actually do have equal
detection of law, and we all know that, like you know, historically,
people who have connections do better than people who don't
have connections. But we've never had a situation where it's
as stark as it is today that if you have
(52:12):
a D after your name, you get one quality of justice,
and if you're Trump or a conservative Republican, you get
a very different You wouldn't even call it a quality
of justice, it's you basically get persecuted at least when
you have the Obama Biden Harris Justice Department, which we've
had for you know, twelve of the last sixteen years,
(52:35):
you know.
Speaker 1 (52:36):
And last question, and I appreciate you taking so much times.
It's hard to really go through this stuff quickly, you know,
because there's so much to it and there's so much complexity,
and I just I learned so much every time I
have you on. So I really appreciate you taking so
much time with us. The last thing I wanted to
ask before we go, So, I think politically the case
out of Fulton County has been badly damaged by Fanny
(52:58):
Willis and her actions, But legally has it been damaged
by her actions?
Speaker 2 (53:07):
Yeah? The thing that bonds me most about this, Lisa
is I think the problem with the Fulton County case
is the case. You know. I think that Fanny Willis's
actions are an add on that should make people who
were suspicious of this whole thing more confident in their suspicions.
(53:29):
That is that like, either you know, she's acting very
politically or she's incompetent. But the problem with the Fulton
County case is the case. The problem with the Fulton
County case is she's indicted nineteen people as if they
were an organization, whereas the fact of the matter is
(53:49):
the nineteen people she's indicted the only thing they've ever
done together is get indicted. You know, I think most
of the people didn't even know a good way to
say it, of the existence of of what some of
the others were doing. And the biggest problem she has,
and this goes to a very basic thing in the
criminal law that it frustrates me that people don't seem
(54:10):
to grasp when I think if this was a Democrat
who was in the hot seat, it would be the
first thing on everyone's mind, and that is to have
a conspiracy. In the criminal law, you have to A
conspiracy is an agreement by two or more people to
violate a law right. And the reason I make that
(54:33):
basic point is trying to overturn the result of an
election is not a crime. There's a process for trying
to overturn the result of an election in all fifty states.
Now you can in the course of let's say you
had nineteen people who agreed to try to overturn the election.
(54:56):
You don't have a conspiracy because that's not a crime.
You can't have in the criminal law. You can't have
an agreement to do something that's legal be charged as
a conspiracy. That's not to say that if you have
nineteen people who agree on a legal objective, that everything
they do in trying to accomplish it is legal. So
(55:16):
like if they went into you know, into if they
had unauthorized access into the voting database, as like one
scheme charges, that would be a crime, but that wouldn't
turn it into you know, that wouldn't turn a conspiracy
to overturn the result of the election into a crime.
It's just not one. So I think Fanny Willis may
(55:39):
be competent enough to understand this, and therefore she tried
to paper it over with rico. But you know, having
tried a lot of federal rico cases, you know, more
decades ago than I care to admit, she doesn't have
a rico because a rico a racketeering organization is something like,
(56:04):
for example, the Gambino family of the mafia, right where
everybody understands that they're associated with a particular organization and
the activities that they commit are in addition to enriching themselves,
they are conducted for the purpose of sustaining the existence
(56:26):
of the organization so that it continues to garner wealth
and power. Now, compare that to what we have here,
which is nineteen people, many of whom don't even know
each other or know of each other, and they don't
think of themselves as an organization. They don't think. They
(56:46):
didn't say, gee, let me join the enterprise of trying
to get the election overturned. And even if there was
such a thing, which is unrealistic, that endeavor was going
to end on jen January twentieth of twenty twenty one,
one way or the other. Either Trump was either they
were going to achieve the objective of getting the election
(57:08):
overturned or they weren't. But the organization was not one
that they were trying to sustain in time and space
so that it could gain more wealth and power. It
was going to disintegrate. So she doesn't have a conspiracy
and she doesn't have a recomb and as a result,
(57:28):
I've always thought this case was ridiculous. Now we find
that she's engaged in all kinds of what seemed to
be corrupt activities. The salacious stuff is one thing, and
it's what you know Obviously it gets Unfortunately, it's gotten
more attention than the infirmities of the cases gotten. But
(57:52):
I think in terms of her exposure, the thing that's
important is did she we misrepresent to the county that
she needed these funds to address a COVID backlog and
then she diverted some of the funds that she was given.
This is extra funding she was given to hire this
(58:14):
Wade guy who doesn't have any experience doing racketeering cases,
so that they clearly didn't need him for that purpose,
and she paid him more lavishly. He made even more
money than she makes as the boss of the office,
and so she diverted the funds for the COVID backlog
to pay him, and then she derived benefit from it
(58:36):
because they go off on these lavish vacations and in
the meantime it looks like they've lied potentially on sworn documents.
So they have ethical problems and they have potential fraud problems.
The reason I lay out the fraud in that way
is there's a federal statute that makes it a crime
(58:57):
if you are a state agency that gets government funding,
which the Fulton County District Attorney's Office does, to commit fraud,
you know, for example, to divert funding for your own purposes.
And you know, this is a delicious little detail to
probably end with, but fraud in federal law is a
(59:21):
racketeering predicate. So I don't know if she's got a
RICO case in Fulton County, but someone may end up
having a reco case against her, although a competent prosecutor
wouldn't charge it as a RICO because you don't try
to turn something into you know, an elaborate circus when
you have a statute like fraud that's perfectly serviceable to
(59:44):
the purpose. And what I've always said about Fanny Willis's
case is not that no wrongdoing necessarily took place, but
it should have been charges like eight different small crimes.
And you're seeing that from the fact that four p
people have pled guilty and not a single one of
them pled guilty to rico. Not a single one of
(01:00:05):
them is looking at a day in jail. So all
this was was basically she did the case that was
the dream case of the January sixth Committee. She got
a big splash for, you know, saying rico and connection
with Trump, because that makes him sound like a mafia
don But when push comes to show she doesn't have
(01:00:28):
a RICO and when she pled people out, they didn't
plead to RICO, and a normal competent prosecutor in a
racketeering case, the first cooperators who come in the door,
what you do is you make them plead guilty to
the RICO charge. You know, they get into court and
the judge says to them, what did you do to
make you guilty? And you say, I was involved in
(01:00:50):
a racketeering conspiracy. Here's what I did, Here's what President
Trump did, Here's what all these other people did. And
then if you get that, the reason prosecutors want that
is it convinces the public that you actually have a case,
and it makes your guilty pleading cooperators much more credible
(01:01:11):
in front of the jury than they'd are thewise be.
So if you actually have a RICO case, you make
those people plead guilty to rico. She made them plead
guilty to nonsense. And they're not even you know, for
a case where they said in the press release after
they announced it that our democracy was hanging by a thread.
We almost lost our country. We got four of the
(01:01:33):
main people have pled guilty and they're not doing a
day in jail. Some insurrection.
Speaker 1 (01:01:38):
Yeah, it's like the threat to democracy. People sure love
destroying it. Eddie McCarthy, I really appreciate your time. You
do such a great job breaking this all down and
just speaking from experience, and you really break it down
in such in such a meaningful way. So I just
really appreciate you taking the time to join the show
(01:02:00):
to do that for my audience and me.
Speaker 2 (01:02:02):
Thanks so much, Lisa, It's been a pleasure that.
Speaker 1 (01:02:04):
Was Andy McCarthy. Appreciate him taking so much time to
break down all those complicated issues. I appreciate you at
home for listening every Monday and Thursday, but you can
listen throughout the week. What do I think John Cassi
and my producer for putting the show together. Until next time.
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