7-15-24 *INTERVIEW* Andy McCarthy on Trump Classified Documents Case Dismissed

Episode Transcript

(00:00):
But I want to start off theshow right away. I don't usually start
with a guest, but Andy McCarthyis much in demand by Fox News,
where he is a contributor, andI was able to grab him kind of
in between hits to talk about themassive legal story. Today, the judge
Eileen Cannon, federal judge in Floridaoverseeing the so called classified Documents case,

(00:21):
has dismissed the case in its entirety. Andy, thanks for doing this on
short notice. Ross, It's mypleasure, So just give us. What
was the basis on which the judgedismissed the case The Constitution's appointments clause.
And this was really, I thinkforetold by Justice Thomas's concurrence in the immunity

(00:43):
case, which questioned Jack Smith's viabilityas a prosecutor under the circumstances of his
appointment. And it mirrors an argumentthat's been made in a MAKEUS BRAF by
former Attorneys General Ed Mease and MikeMukasey, among other legal luminaries. And
it's very simply this, under theConstitution, an officer of the United States,

(01:07):
which is what a prosecutor wielding thekind of power that Jack Smith Wields
is has either to be appointed bythe President and confirmed by the Senate,
or has to occupy a position that'sbeen created by Congress in a statute.
Jack Smith is neither one of thosethings. Merrick Garland, the Attorney General

(01:30):
has lots of power on the statutesCongress has enacted. He has the ability
to take any US attorney in thecountry and appoint him as a Special Council
to take any matter in the country. But those are US attorneys who've been
nominated by the President and approved bythe Senate. Smith was appointed under Special

(01:53):
Council regulations that were basically written byJanet Reno after the Independent in the Clinton
era, back after the Independent CouncilStatute. Laughed, and the Constitution does
not give the Attorney General the powerto create offices of the United States.
He can sell them with Congress createsthem, but he can't create them on

(02:14):
his own. Okay, So,just to re emphasize what you just said,
I saw some pinhead on Twitter thismorning saying, well, if if
Judge Cannon's ruling is upheld, thatmeans that Robert Herr's thing has to go
down and John Durham's thing has togo down as also invalid, and I
wrote back, No, those twowere both Senate confirmed, so it's not

(02:36):
the same. So is that isthat right? I'm not sure about her,
but I think he was a numbertwo in one of the districts.
But here here's the difference. You'requite right about John Durham, who's in
the same category as Patrick Fitzgerald,was that Gerald was the US attorney in
Chicago when he was appointed for theStooter Libby case. He's in the same

(02:57):
category as David Weiss, who wasthe US attorney in Delaware when he was
appointed special counsel for Hunter Biden.The difference with her is that that was
only an investigation, so the AttorneyGeneral can assign anyone he wants to assign

(03:19):
to an attorney to an investigation.Once the case is indicting, then the
defense has can make any motions atall that are aimed at not being at
the case, dismissing it on constitutionalgrounds or other grounds. So that would
be a worthy objection if her hadactually indided the case, but he recommended
against indicting the case. And Durham, as I just said, was a

(03:42):
confirmed US attorney. No one questionsRoss that the statutes that Congress has enacted,
and there are a bunch of them, give the Attorney General immense power
over the Justice Department to assign anypresidentially appointed US attorney to any investigation.
The question is can he create aposition, which is what happened here.

(04:05):
I will just note in case thisquestion comes up for you for you later,
Andy, And I'm looking for thedate here, but Robert Hurr was
unanimously confirmed by the US Senate tobe US Attorney from the District of Maryland
on March twenty second of twenty eighteen. I thought he was number two.

(04:27):
But that's good to know, Thankyou. Okay. So the next question
then, and this is something else. Somebody asked. I don't know why
people are asking me this, becauseI'm not an attorney, but someone asked
me this on Twitter. Was thisdismissed quote unquote with prejudice? And I
said, no, I don't thinkthat really even applies in this kind of
situation. And my understanding is thatif the DOJ really wanted to, they
could assign it to an in houseattorney or to a properly selected special counsel.

(04:51):
Did I get that part right?Well, you know, I think
it's to talk about whether it's dismissedwith prejudice is interesting question because what I
thought would happen here ross you know, I've written twice about this motion,
and my prediction was not that JudgeCannon would throw the case out. I

(05:13):
predicted that what Trump would argue wasthat everything that Smith had done in the
case was, as the Latin typelawyers say, is ultra viris, that
it was illegitimate, that he didn'thave the constitutional authority to do it.
I thought that she might take amiddle ground and say, you know,
look a lot of what happened here. He didn't object to the status of

(05:39):
Smith on In fact, he didn'traise this until you know, far along
in the motions, which he wasallowed to do. But like he's happily
taken discovery from Smith, he's hadnegotiations with Smith over various things without coming
to the court and saying this iscompletely illegitimate because his status is not legitimate.
So what I thought would happen,and I really think that President Biden

(06:02):
and Mark Garland dropped the ball herewhen they realized this was an important issue,
and especially when Justice Thomas wrote hisconcurrence in the immunity case. What
they should have done was reassign thecase for supervisory purposes to the US attorney
in Southern Florida, had Smith assignedto assist that US attorney, and then

(06:25):
if they thought they had to reindict, they could have reindicted. But tried
to argue to Judge Cannon that youknow, look, they didn't object to
what happened up until now, sothere's no reason to throw all that out.
And from here on the case isbeing supervised by the US attorney who's
been approved by Congress, so weshould just go forward. And I thought

(06:45):
that might be an appealing motion tomake to her. Obviously, that didn't
happen. They decided to throw downand completely object and I think that was
the wrong approach. But as Ijust said on TV of minutes ago,
ross I wrote a column today callingon President Biden, if he's really serious
about the things he said about bringingthe country together in the Oval Office yesterday,

(07:10):
to drop the cases against Trump,and particularly given that the Biden Justice
Department dropped against Biden the same chargesthat Smith larded thirty two espionage scionage accounts
into the indictment against Trump, whilethey're giving Biden a complete walk. I

(07:31):
think it's a real missed opportunity forBiden because this case was going nowhere prior
to the election. It's tied upin classified information litigation, which takes a
long time to get through. There'sno way this case was going to get
decided prior to the election. Bidenwould have looked magnanimous and like he was

(07:54):
putting his money where his mouth isin a cost free way because the case
wasn't going anywhere. If he justdismissed these cases and said to the country,
you know, look, let's decidethis at the ballot box the way
Americans are supposed to rather than thiscontinuing part of using the prosecutorial authority of
the incumbent administration as a weapon againstpolitical enemies. I think it would have

(08:18):
given him a much better chance towin the election. If that's what he's
meaning, you know, I thinkthat's his main concern. Joe Biden never
fails to miss an opportunity. Hemissed an opportunity last night in his speech
from the Oval Office as well.Andy McCarthy is a contributing editor at National
Review. His latest for National Reviewis entitled Mister President, if you want
to mend our political divide, endlaw fare. Andy, Thanks for doing

(08:41):
this on short notice, Always sograteful for your time. Thanks so much, Ross,