No Meat and Potatoes: Andy McCarthy talks to A&G

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Episode Transcript

Speaker 1 (00:00):
As we mentioned last hour, there is a short ish
list of people to whom we go for opinions and
perspective because we know, whether we agree or disagree, it's
going to be worth considering. Andrew McCarthy is high high
on that list. He was an assistant U S Attorney
for the Southern District of New York, wrote a fabulous
book called The Ball of Collusion, The Plot to rigging
election destroy Presidency. Senior fellow at National Review Institute. I'm sorry, uh,

(00:23):
National Review contributing editor as well. Uh. Andrew McCarthy joins
us Andy, how are you, sir. I'm doing great. It's
great to be with you. Yeah, thanks, um. Trump lovers
and Trump haters are pretty excited about this story, obviously
for different reasons. But it seems to me that there
are quite a few pundits out there, left right and
center who think there's no way the Feds went into

(00:45):
Trump's house did something this norm breaking just because of
archive retention. Is that your belief, Yeah, that's my belief.
I think it's pretty clear that what they're very interested
in his January X that that you know, they had
enough evidence with respect to the records retention and the

(01:07):
classified information aspect of it. That that gave him a
basis to get a search warrant. But the way the
law works, once you have a lawful basis to go
in to do a search, even if the search warrant
gives you permission to search for crime. A if while
you're in there you find evidence that's relevant to crime,

(01:29):
be you, you don't have to ignore it. You're allowed
to take it. So I think what they really wanted
was a legal basis to go in there and do
a wide ranging search that would help them with what
their priority is, which is the January six investigation. Right,
I realized this calls for a fair amount of speculation,
But I'm squinting. I'm making my squinty face, trying to

(01:51):
figure out, all right, what would be in a file
box in the storage room in mar Lago that would
relate specifically to that or in the safe. Yeah, the
way these investigations work. Let's think for a second about
what you think they think they need to prove. Right,
they are trying to make a case that Trump is

(02:12):
involved in a conspiracy to commit election fraud. And the
biggest challenge for them, because Trump had a bunch of
people telling them that there was no fraud, and he
kept going out and saying there was fraud. What he's
going to come back and say is I totally believe
that there was fraud. And I had plenty of people
who were telling me there was fraud. And when the

(02:32):
Justice Department told me we looked and we didn't find
any I didn't believe them because I believe there was fraud. Um.
So what I think the Justice Department is trying to
do is develop evidence of Trump's state of mind at
the time, to try to show that he didn't really
believe what he was saying publicly. So when you're talking
about like getting evidence of what somebody's state of mind is,

(02:55):
you're not really gonna find like a smoking gun memo
that says here are the five ways that we're going
to commit election fraud. You know, what you're looking for
is contemporaneous conversations that he was having with people at
the time which would show or indicate that he didn't
really believe what he was saying. And you know, that
may not look like a smoking gun when you first

(03:17):
see it, but if you're a prosecutor or an investigator
and you're aware of all the other evidence of what
everybody else said. Uh, some things that look like they're
innocent on the surface take on a different cast. Why
didn't they just subpoena this stuff? Yeah, that's a very
good question. So I think there's two explanations for it,
um uh, both of which are um alarming. One is,

(03:44):
it seems to me that the political left, particularly the
Democratic Party base, is very impatient with Garland. They think
he's too passive. You know, they don't know why Trump
hasn't been indicted already. They think he should have been
run and quartered like years ago, so he doesn't understand.
They don't understand why Garland hasn't moved on this, and

(04:05):
there's been a lot of agitation. So I think a
lot of what the Justice Department has done in the
last six weeks is theatrical. Like, for example, you know,
they did search warrants on these two lawyers at the
end of June Eastman and Jeffrey Clark. Um. They didn't
need to do search warrants on those guys. They could
have given him subpoenas. They could have given their lawyers
subpoenas and told them, you know, this is the stuff

(04:27):
we want. Have them turn it over to US. Ethan
had just been inn a litigation over emails out by
you guys in California, UM when he when they when
the committee asked that his emails, he didn't go and
destroy the emails. He went to court and when he lost,
you know, the people got what they wanted. So we're
not dealing with people who are going to destroy evidence.

(04:48):
Yet they used search warrants, and they did this search
warrant yesterday, so you have to worry about are they
doing are they being more intrusive than they need to
be in order to project to the Democratic base that
they're being energetic and aggressive and they're really serious about
this investigation. So that's one interpretation. The other bad interpretation

(05:09):
is they think that they're dealing with people who would
destroy evidence if you gave them to penis, so they
feel like they have to have the element of surprise.
So I give you those two things. Neither one of
them is uh is very benign, but you know it
is right. Andrew McCarthy, National Review contributing editor on the line.
So you've you've kind of touched on this, but the

(05:30):
narrative on especially the super enthusiastic Trump e right, is
that this is third world Banana republic usurping of the
democratic process. Blah blah blah. Um is that two fevered
or do you think perhaps in the Justice Department's you know,
desire to appear to be doing something, they have edged
into Banana republic territory. No, you know, I think it's

(05:55):
too early to say that it's um. You know, look,
I think from their perspective, and just so you know
where I'm coming from and what my bias is here,
I think if anybody can be shown by strong evidence
to have been involved in violence, and that person should

(06:18):
be prosecuted, no matter who it is, and no matter
what is hum it is that that prompted the violence.
But if we're if we're not dealing with violence, then
the cases that they're trying to make on Trump, the
charges that they're investigating are things like, um, did he

(06:38):
obstruct the congressional proceeding where they count the electoral votes?
Or has he committed a fraud on the government, which
is a very elastic uh. And and I think much
abused statute that we have in the law that allows
prosecutors to essentially criminalize things that Congress has never gotten
around to criminalizing right. So with respect to those things,

(07:00):
I kind of agree with what Attorney General bar said,
which is that if you're going to have the Justice
Department interfere in electoral politics, the only time they should
ever get involved is what what he called the meat
and potatoes crime, which is to say, a crime that's
so clear that everybody can wrap their brain around it

(07:21):
and see the merits of prosecuting it. But if you're
talking about things where you know, the Justice Department is essentially,
you know, trying to criminalize a loopy legal theory, like
you know, John Easton had this theory that that Vice
President Pence didn't need to count the electoral votes. You know,
when I was a prosecutor, if we were going to
turn into a felony, a frivolous legal theory, I'd have

(07:44):
been prosecuting five lawyers a day. Um, you know, we
just don't, we generally speaking don't do that. We give
a wide berth for politics and we give a wide
birth for legal interpretation. And I think if you're going
to have a situation where it's the Justice Department for
the first time in history prosecuting a former president of
the United States, it better be a clear crime. It

(08:07):
better not be like one of these things where the
Justice Department was thinking about new ways to push the
envelope of complicated statutes. I just think if they go
that route, then people are rightly going to think that
the Justice Department is being weaponized for political reasons in
a way that it wouldn't be in a normal case. Right, So,
getting so this becomes politics more than than law. But

(08:28):
if your if your theory is corrected, that they they
they they got a warrant for something that they can
probably pull off. You've got some stuff here that you're
supposed to turn over, but they're really looking for January
six stuff. Isn't that the biggest roll of the dice
in political history? If they don't come up with something,
well what do you think? I mean? I think that

(08:48):
if nothing happens, then this will be forgotten. I don't
know the number of never Trumpers that I've heard people
on the right who had soured on Trump or never
dig dig Trump or now are like, hey, you better
shows something big here. I just wonder if he's going
to get a ton of sympathy out of that crowd. Well, yeah,
you know here, I think the smarter Democrats um have

(09:11):
concluded that Trump can't win a national election, so their
dream scenario is that the Republicans nominated and then he runs.
So I think a lot of this by the smarter
Democrats is trying to go Trump into running and to
fire up his base so that he becomes almost I
actually heard somebody say this on the Republican side yesterday,

(09:33):
that he should just be nominated by acclamations. Yeah, I
heard that. Yeah, that was a former Huckabee, former Governor
Huckaby said Trump should be nominated by acclamation. At this point,
there's a stance against the evil, and he'll lose, and
he'll lose in November by twenty points. Um, you know,
I mean, I just think I think they're crazy if

(09:56):
they think, uh, you know, I probably shouldn't do political
pugitory because it's it's not necessarily my line of work.
But I but I always think that, you know, Trump
won by the skin of his teeth with miraculously with
forty of the vote in two thousand one, which is
very hard to do in what's essentially a two person rice, right,

(10:18):
but a lot of things broke his way, and then
in two I think when the dust settles. He kind
of lost the conventional election. It wasn't even by you know,
historical standards. It's it's like in the tier of close elections,
it's kind of low. It was a close election, but
it was it wasn't that close. Um. And what's happened

(10:40):
since the election is the Capital riot. You know, we
had two months of the stop to steal craziness and
the Capital Riot riot, which you know, pro Trump people
may see it one way, but most of the country
is is horrified by it. So I think Trump had
a hard enough time winning a national election where everything
had to go right for him, and he was running

(11:01):
against a historically bad candidate and he barely won by
the skin of his teeth. He lost the next time,
even though he was the incumbent, And now he's got
to run if he runs with January six around his neck,
and I just don't see how he does it. So,
So if I'm the Democrats, I'm just trying to be
I'm not trying to be pro Trump or anti trup.

(11:23):
I'm just trying to you know, logical about this. Um.
If I'm the Democrats, I want the Republicans to nominate them,
just like the Democrats are running around, you know, funding
all these pro Trump candidates because they think they're gonna
be easier to beat in November. Oh man, as if
politics isn't ugly and confusing enough. Andrew McCarthy, The National Review.

(11:43):
I'm afraid we're out of time, but we sure appreciate
the perspective. It's always great to talk. Let's do it
again soon. Sure I enjoyed it, Thanks so much, Thank you,