Weighing the Charges

Wait, did you say Sunderland. Sunderland? Am I having a stroke? Ask not what your country can do for you, ask what you can do for your country. Mister Gerbatcheff, Tear down this wall, read my lips. It's the Rikoreshete podcast with Charlie Looks sitting in for Peter Robinson, Rob

loong Us. Here. I'm James Lonnox and we're going to talk to Andy McCarthy because if there's an indictment, insign the doctor Andy so let's I was also podcast charging Donald J. Trump conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. They were a disaster, they were a disgrace to our country, and we've caught them. We've caught them all. Welcome everybody. It's THEE Podcast, number

three hundred and fifty three. How do we get this far? Simple? The raw power of ricochet dot com rules on decade to decade. Go there, by the way, take a look. You won't be able to see the member feed, which is where so much fine happens, because maybe you're not a member, but if you sign up, you'll be the keys to the kingdom will be granted, and you'll see exactly why we've been around for so long and done so many wonderful things, with the help of the founders,

Rob Along and Peter Robinson, who is not here again. He is off, yeah, an anabasis of some sort, and we'll hear about them that soon. Don't worry, he's coming back. But sitting in his place in his stead is Charles A. CW. Cook, who, of course recently went on Ricochet to tease five point oh, the new version which is coming soon and I can't wait it. Maybe we'll hear about that at the end of the show. But first, Rob, is it really five point

five point? Did I miss a point zero or something? That I miss a point something? I thought it was three point oh, but I guess no, No four was the blue was the one that we have now at one point? Of course? Was? It was entirely more so. I remember one point oh, believe me, it's got my blood and one point oh, that's right, and number doesn't work anymore. That's exactly what's you find so sclerotic and clotted with cholesterol. I remember two point which was all

ticker tape delivered by pass by messenger pigeon. But that was great anyway. Before we began, Rob said, you wanted to throw a curve ball. Yeah, okay, I wanted to confess something to my to my friends on here and my friends listening. Uh. And I you know, I just want to. I want to. I want you to tell me if um, if this I mean, I'm just telling you my honest reaction. Absolutely, how I read this new story and you tell me if I'm a hideous race sister? Done? Uh? Two US Navy sailors were accused, um

and arrested, I think of passing secrets to China. So they're arrested in California. They arrest the arrest of Wednesday. They're in California resid Wednesday. Separate cases accused of passing sensitive natural offense information and military secrets to Chinese agents

can exchange for money. And I scrolled way down, way way way down in the article to see that one of them was the machinist mate named Jin Chow Way also known as Patrick Way and um no way uh yeah, and the other was a petty officer named when Hang Chow and when I read, also known as Thomas Chow or Zoo. I think the zh Zaoum, And when I read that, I went, oh, of course, of course, it just I mean, I'm not I'm not saying that I was right

in this response. I'm not saying that, oh, I have a I'm just saying that my natural response when I read those two names of those two US naval officers charged with espionage for the Chinese government, my initial reaction was, yeah, I figured that. Then my second reaction, wait, don't tell me I'm not a racist yet. My second reaction was, shouldn't they have been keeping an eye on those guys? Well, that would depend on

a lot of things. I mean, if in the nineteen fifties you saw that a sailor had sold nuclear secrets to the USSR, you might think, I wouldn't be surprised if this is Ivan Ivanovich, you know, with something like that at the bottom of it, because you would think perhaps they had gotten to him through family connections. With the rest of it, that would

not be an unreasonable reaction. As far as keeping tabs on them, I would say no, unless there was some reason, unless they had family ties back to unless there was some hint that they had connections to the season. Otherwise I do we do we look at the guys who've got Venezuela and uncles and U and put them under the microscope, do we? We're not under We're not in a global competition with Venezuela. Last I check, was not

a global hedge of on Um. I don't know. I mean, yes, I guess so your answer is yes, I am native born Americans who happened to have a particular ethnic heritage. Do not seem to be automatically suspect unless you got something that tells you keep an eye on that guy. Yeah, okay, no, you're quite right, A right. It seems to want to be a racist here. I don't. I really don't. I just I was. I was a present to my instant reaction, and I wasn't proud of it. I said, okay, I'm not gonna pretend I

didn't have his reaction. And then when I didn't pretend I had the reaction, I thought to myself, Well, I mean, I know it's complicated, but I mean I was not surprised, And was I not surprised because I am, um, you know a bad person? Well do I is?

There is there is there something? I mean and now I'm going to complicate things by adding to it something that happened some a statement that was made in July twenty fourth by the CEO of Raytheon, which is one of the biggest defense contractors in the country and M Raytheon CEO Greg Hayes said, Um, there's no way to full supply chains out of China. So Raytheon one

of the biggest defense contractors, high tech defense contractors in the country. Um, it's going to continue to get most of it's a lot of it stuff in China. Okay, that's all. That's all I want to say. Well, he's wrong. It just takes time. It takes time, money, and will like the rest of it, Like every single bleepity, bleep fargin problem that posts this country, it takes will get a bit of time,

but most of the desire to do something. Um. But I guess we're in the era of throwing up our hands and shrugging our shoulders and saying it's a big job. I can't do that anyway. Charles, are you going to say, well, I don't think you're a racist drop I think that No, you asked the question. I think that this all depends on

the next step. So if the question is are you a racist for not being shocked that the two people within the US who were passing secrets to the Chinese were themselves of Chinese origin, however far back that goes, that's not racist at all. If your next move were to say, bring back the Chinese Exclusion Act, it wouldn't you didn't say, I think that this is in a sense of a piece with the plot of Oppenheimer, which I saw

at the weekend. That was terrific. The movie was admirably nuanced, and I left it thinking, well, of course the US government was suspicious of Robert Oppenheimer because he had been a communist or communist adjacent. Right now, if the conclusion from that is therefore we should throw all communists in prison or McCarthy was right about everything, Well, that's something else, isn't it.

But yes, of course they were worried about people who were communist adjacent or communists themselves, because do you know who actually spread all of our secrets to the Russians? People who are communists or communists Jason, So I don't think it's unreasonable to say, well, if we are going to have a pipeline from the United States to China, it is more likely to be populated by people who have Chinese names than it is by say me, well, that

seems reasonable. The trick always it's not to overreact and open interman camps. Right, He's always right. I mean, it is not racist to be not surprised. For example, when somebody who had that terrorist incident in far Going, North Dakota, where a man open fire on the police with automatic weapons, and it was not completely surprising that he hailed from the Middle East, and then people are in rehder to were saying, oh, you know,

all the races are going to be yelling about this look. And they had a picture of the guy, and he didn't look particularly clichede Syrian, but I'm not sure what a Syrian looks like. Point was not his ethnicity. The point was his origin, I would say, and the fact that he came here from Syria in twenty nineteen and perhaps did not take to the customs and folk ways of Fargo, North Dakota as well as he should have.

I mean, we all make these assumptions, these calculations a million times a day, and of course everyone's had their implicit bias tests or you're toy. I mean if if you guys had implicit biased tests and not. Yeah, okay, Well, the one that I like to say is that we were showing a whole bunch of pictures and we were asked to make assumptions about

them, and everybody's very nervous. Of course, if we get the wrong marks, we think we're really going to get something put down in our final And they show a man who looks like, you know, he looked like Bob from Twin Peaks, and he had long hair and in a scary face and a leather jacket, and he was holding in his hand a bar like like a metal wad. So what assumptions did we make about this? And I have everyone is, well, he's kind of a scary character and maybe

I'd crossed the street. Well then they zoom out like that and it turns out that the bar that he has in his hand is the handle of a baby carriage, a prem and there's a there's there's a he's pushing a carriage. It's like, weren't you stupid to assume what you did based on what you saw? And I will say, look, I'm not walking around with a toilet paper tube up to my head staring at people through a small little

aperture. I would apprehend the totality of that man at the time and would be able to tell you that he's no threat whatsoever, because he's gone baby baby herman from who you know, from the Roger Rabbit that movie is gonna, you know, pop out with a stoke in his mouth and wake us all with a machine gun. So much money to have been in that room with James, I mentioned change. James said, it's such a dumb test, right. That's the equivalent of saying, James, tell me there is

a man and he wants to kill you, what do you do? And then you say, I run away and they say, ah, I meant kill you with kindness to Rachel stupid now like, well, yeah, now you've changed the entire premise of the question I do. Yeah, I was. I was unpopular with them from the start because when they asked me what my ethnicity was, how I identified I said North to Codon because I think that's much more of a guide than anything else that I could possibly say.

Then we were given legos and we were asked to make something out of the legos right, and there was red, blue, yellow, white. And so what I did, because I have preference for Mondreon like compositions, I built something that was that segregated the individual colors in the structure to make it esthetically balanced. And I had to explain to the person when I said this, do not take this as a metaphor from my desire to wall off ethnicities

into separate groups or physical localities in real life. I just think it's more play. I mean, I felt really, really nervous about the fact that I have expressing an esthetic pleasure with Legos and that somehow this spoke something about me. It was all just ridiculous, that the whole notion of it. And I'm sure we're gonna have to go through it again if my boss and get ahold of this anyway. So Rob, there you have it. Um, I guess we give you a pass, but you know we would modified

limited hangout pass. I guess. I was just thinking that phrase as I was walking back from the drug store with a sack of meat balls. Honest to god, limited modified hangout. I was thinking that that's what they're doing with the Biden and the heat. Well, of course, of course he met with a son about business. You know, of course his son made money from which was not what we heard before. How are you guys taking

these sort of shifting narratives? I mean, the four pinocchios was granted to Biden by the Washington Post just a little bit ago, which is everyone saying the signs that the narrative is cracking, walls are closing in. Not sure about that. But what do you think is the next step here? What are we looking for in him to come well? I mean we should say that we're you know, our guest today will be Andy McCarthy, so we'll be talking about the really big story that's with him, So we're not really

we're avoiding that one. Um. Yeah, look, I uh, there's so many weird things about the Biden family and Biden presidency. UM. And I just don't understand. Um, maybe they maybe they've got some genius plan. I don't understand why with the seventh granddaughter they didn't make it a big deal. I don't know why they're embarrassed by this. This seems like it'ld be a heart you know, warming moment. I don't understand them. The

strange protection of Hunter Biden. Um, I don't really get it. Like there's a million things they could do to sort of neutralize that and to actually, you know, put it in context if people feel a little bit sympathetic to this guy, I mean, not to Hunter Biden, but to his dad. Um the weird uh sort of Jersey City mafia style kind of not Tony Soprano, but like, you know what when the Sopranos when they were all involved in like the little stuff that got ugly and nasty. But it's

like over like, that's what this feels like. And I don't I don't understand how. I mean, I'm always surprised at the incompetence of the Biden political team. It just always surprises me because there is there is so much there that they need to do, and there's so much work to do, and there's it's such a you know, a target rich environment, and their

political operation is so incredibly amateurish and incompetent. It makes me think that, you know, honestly, it makes me think that that's a lot worse than we know. That this influence peddling is a lot worse than even our fevered anti Biden imaginations can conjure. I'm not going to make the same mistake as I decried with the Russia Gate nonsense and get ahead of myself, or make

accusations or insinuations that aren't supported by the evidence we have. But I will say, Okay, I will, but I will say that what we currently know about Hunter Biden and Joe Biden's involvement with his business is substantially worse than anything we knew about Donald Trump and the Russia Gate allegations. Substantially worse. And yet I won't say inexplicably because we all know why. Infuriatingly it's being ignored. I am so tired of reading nothing about it. If that makes

sense. How many times did I sit on television in twenty seventeen, twenty eighteen, with everyone around me on CNN or MSNBC or what you will, hyper ventilating and thinking, you know, I'm not going to sit here and say that sounds like a load of old crap, because if I do that, I will lose my career. It will be played every time I say anything if I turn out to be wrong or I didn't do it. But I sat thinking, I think that's unlikely, and I said I don't know.

I would wait to see the evidence. Of course, if it were true, it would be very serious. But I don't think we have any evidence. This is America. We know so much more that is a problem in this case, and yet it seems to me no one is deliberately, no one in a position of power in the press is doing anything about it. And it does matter because people think, oh, well, why doesn't the right just build you know, these great investigative reporting teams. I think

it's a long term plan that is actually correct. I think the right has absolutely dropped the ball on this. But you can't do it overnight. You know, the expertise at the Post and the New York Times and ProPublica announced where is necessary for this one and can't be matched except maybe by the House of Representatives. You're wrong that the press isn't doing anything, isn't saying anything.

One hour ago, Hunter Biden businesses socially testified he had it's no knowledge of wrong doing by Joe Biden, you would say today, Devin Archer testifies Joe Biden never talked business when put on the phone Washington Post, Devin Archer said the opposite of what Republicans claimed. So there it is except I'm sort

of I'm reading a lot of these things. I'm reading some notes about barisma and the rest of it, and it seems unlikely how that this concatenation of calls and appointments and money and prosecutorial firing and the rest of it does not smell like loot fisk that's been left in the broiling sun for three hours.

A couple of weeks ago, maybe a month ago, there was a story with three buyelines on it in the Washington Post about a Christmas party that Clarence Thomas had held, which many of his clerks attended, and then paid him twenty dollars via Venmo for the chicken fingers and hamburgers and hot dogs and pepsi. And there were people on Twitter saying, it's very clear what's happened here. These twenty dollars. Twenty dollars, These twenty dollars Venmo payments are bribes.

They're a vig. They're a vig. We all know how this works, We've seen the movies. Twenty dollars And then people would say, well, could you talk me through how the mechanism works. It doesn't matter. Once the money had been paid, Thomas knew what to do, all right. Now, the same people are saying, Joe Biden got on the phone and talked to Hunter Biden's business associates, but we can't draw anything from that.

Come on, right, right, Yeah, Clarence Thomas goes on a vacation paid for by I happen to know of a lovely, lovely man actually and his friend and a legitimate friend. And it's clear indication of a bribery. Joe Biden gets on the phone with Hunter Biden's clients, and it doesn't mean anything. It's not bribery. Consider it an investment. Use those words. Government invests people to bribe, They invest I mean. But you know, all of us like to invest in things right different the market essentials,

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we thank Boland Branch responsoring this the Ricochet Podcast. And now something legal happened. We go to our legal guy. I was glad to see him too, Andy McCarty, senior fellow at the National Review Institute, contributing editor there as well and as well at Fox News, served as a assistant I'm sorry, and assistant US Attorney for the Southern District of New York. And Andy, how you doing? Good to see you. Indictment number TWI. This is going to be the one right this, So walls are closing in.

They're gonna sink the guy. They got him this time? Or do they walk us through what's being accused and what do you make of the charges, Well, I don't think they were strong if they got him, James, I think they got him on the moralago thing when they got him on this thing. So I think the charges here are weak, and the weakness isn't apparent because the indictment, I think, is teaming with a lot of deceptive behavior. Right, So there's a lot of evidence which would paint Trump in

a very bad light and strongly suggested that everything he did was deceptive. But see, the thing is, I think there's been like lavish coverage about his state of mind over the last few days, like what did he really know? Could you prove his state of mind beyond a reasonable doubt? And really, you know, he's Bill Barr's out there, for example, saying, you know, he absolutely knew he was lying. I told them that there was no election for it. So that's all very interesting about Trump's state of

mind. But the thing is, in a criminal case, you don't get to the guy's state of mind unless you can prove that he committed a crime, you know, putting the putting, whether he did it intentionally and knowledgeably, and all that stuff to decide whether the acts that they've accused him of

make out a violation of law. And I think the problem that Smith has is that what he has charged either are not actually crimes and I'm speaking there about the fraud count and maybe the obstruction count or are crimes, but they don't fit this particular fact pattern. And that's obscured by the factual recitation in the indictment, which is, you know, obviously it's it's immense and it's

it's it paints Trump in a very unflattering LFE. But I don't think that the fraud account, and this is a this is a favorite of creative prosecutors, this charge of conspiracy to defraud the United States, I don't think that the Supreme Court would allow it if the case gets to the Supreme Court to be applied to political corruption. They've been very clear that fraud in the United States and federal law is a deceptive scheme to build somebody out of money or

tangible property. They said that in two cases involving Cuomo's Andrew Cuomo's pronies chim and Ellie and Percoco in the middle of May, which is why I said at the time, I thought that that would be sort of a shot across the bow that might make might make Jacksmith fold his tent on the election interference stuff. He's going with an interpretation of the defraud the United States Statute that the Justice Department likes. It has always liked because it enables prosecutors essentially to

criminalize things that Congress has never enacted in a criminal statute. But the court has pretty much warned the government not to do this sort of thing, and he's indicted into the teeth of that jurisprudence, So we'll see how that goes. The obstruction counts, I think are problematic because everybody is allowed to try to influence Congress, including the president. The question always when you try to

influence a tribunal is have you done it corruptly? And corruption is a term in federal law that, much like fraud, is one that has been extended in a very elastic way to cover a lot of conduct that could be constitutionally protected conduct. So there's always a dispute about what do you have to do to make out corruption and is it so vague that you should just get rid of the law entire home. And I think he's going to run into that

problem because a lot of what Trump did is constitutionally protected activity. And you have some judges in the DC Circuit who've taken the position that unless you do something that is traditional criminal corrupt behavior like witness intimidation or document evidence manipulation, that doesn't meet corruption. And the theme here I should I should stress is that as as just as Scolia among others said, I think Scalia said it

best. It's a bedrock principle of the criminal law that criminal statutes have to be sufficiently clear that a person of ordinary intelligence can understand what the law prohibits. So if you get these loose concepts in statutes like fraud and corruption, there's a divide in the Court had to handle that. Some judges think you should just invalidate those statutes in toto because their presence on the books chills people

from acting in manners that are protected by the constitution. Other judges prefer what they call limiting construction. So, for example, Congress try to enact a fraud statute that would extend fraud to this concept of honest services fraud, the

idea that you have deprived people of their right to honest services. The Supreme Court ended up saying that that is too vague, it's not clear where that obligation comes from, who it applies to, etc. So they, instead of throwing the statute out, which Scalia and a couple of other job this is on the court wanted to do. What they did instead was do what

they call limiting construction. So now that statute only applies to bribery and kickbacks, so fraud in the United States, as far as I understand, it is applicable only to financial crimes, either stealing money or tangible property or bribery and kickbacks. But it doesn't apply to As they've said, it's not a vehicle by which prosecutors are supposed to impose somebody's idea of what good government looks

like. And if Congress wants to do that, they've said Congress can enact a statute like that as long as they are clear about it and they don't do it in a vague manner. But it's not licensed for prosecutors to sort of freelance as as lawmakers in the penal law. So I think he's going to have big problems with those counts. And I'll just say quickly, the

last count goes. There's been a lot of talk about this already. The last count is a civil rights count, and it invokes a statute that was enacted in the post Civil War period which was designed to combat the use of force, specifically by the ku Klux Klan preventing violently preventing black voters from exercising their right to vote. And that's the statute that he's trying to bring to

bear in this situation. He's got one Supreme Court case from the sixties that he's relying on for this, which is a ballot box stuff in case, also removed from the facts of this case. So I think the modern textualist Supreme Court would not even approve what the Court did in the sixties applying that

statute to ballot stuffing. But I don't think they have to invalidate it in order to just say, look, this doesn't apply here, because even if the ballot stuffing rationale is color that is directed at the act of voting, whereas what is involved in the case with Trump is after the fact challenges to the voting, which would have the effect of canceling out votes. But it's not the same thing as ballot box stuffing. So I just think legally,

all four counts are they have big trouble with them? So and it just so we're clear here, because I've seen people conflating these two questions in both directions, trying to hang one on the other. What we are discussing here is whether or not what Trump did was a crime. But we're not discussing whether or not he did it. What Trump did was to try to rewrite the Electoral count Act and the Twelfth Amendment to empower Vice President Pence to overturn

the results of the election and make president once again. That's not really at stake. What is being debated here is whether there are statutes that support this indictment and or whether this is an intrinsically political matter. But the facts of the case are established. I asked this because I've seen people say, essentially, well, we know what Trump did was terrible. I agree, and we know January sixth happened. I agree therefore he should be charged with a

crime, which is a non secretary. But I've also seen people saying, we're implying if this isn't a crime, if this is intrinsically political, if there's no statutory basis for it, if the definition of fraud has indeed been narrowed by the Supreme Court such that this your fools outside of the law. Therefore, Trump didn't do anything wrong. That's not correct, right, right, It would mean he didn't do anything that was prohibited by the criminal law.

But there are a lot of things that are not prohibited by the criminal law that are wrong. And I think, Charlie, though, you also hit on something which is a point I've been trying to make about the political nature of this. I think what's going on here in part is that they are trying to use the criminal justice process as a proxy for the failure of the political process to hold Trump accountable. All the things that Charlie just laid

out are indisputable he did these things. There's no doubt that they're high crimes and misdemeanors. But you don't have to have a criminal offense in order to have high crimes and misdemeanors. What Hamilton, for example, in the Federalist Papers talks about is high crimes or impeachable offenses as what he called political offenses, by which he meant profound abuses of the political power that's allotted in the Constitution. And you know the fact that Smith does not have a crime that

he can easily apply to Trump's activity. I think he is a feature of the system, not a bug. I don't think this is something people forgot, like like Congress just you know, in some oversight, they in almost the order of a millennium, they haven't enacted criminal laws that would put the Justice Department in the FBI monitoring elections. I think that's intentional. And the way the system is designed, presidential abuses a power are supposed to be checked

by Congress, not by the criminal law. So I think that's the main problem that that Smith has. Can I ask a very by follow up on that exact point. I read through the indictment, and I read the debate between the editors at National Review and Noah Rothman and you and Noah Rothman and

some of the criticisms of National Reviews editorial, and it struck me. And correct me if I'm wrong that a creative prosecutor under this theory, even with the narrowed conception of fraud, could bring a case against an out of office Joe Biden for his student loan order, because you could argue ass here, and again, Andy, correct me if this is wrong, that Joe Biden tried to defraud the treasury. He tried to gain a pecuniary advantage from the

Treasury by misrepresenting a law. Now, usually you would say, well, that's a political question, but I suppose the argument against this indictment is, well, so is this Is that a fair analogy? Yeah, I think that's right. The way they would put it would be to say that he engaged in a deceptive scheme that undermined an essential function of government, to wit Congress's ability to budget. And you can see how dangerous this is. I

mean, basically. In fact, during the Muller investigation, Andrew Weiseman, I'm you know, this line of reasoning is very popular with progressives in the Justice Department, who liked to use the Statute in order to impose their own visions of good government, just like, for example, they used the Civil

Rights Statute to impose their own vision of what good policing is. And in the Muller investigation, they charged Paul Manifford with defrauding the United States, and the scheme was that by failing to register as a foreign agent, he undermined the ability of the government to have a comprehensive accurate registry of foreign agents. Now, if you wanted to have a statute like that, I mean, we do have a Foreign Agent Registration Act, but if you wanted to turn

it into a conspiracy, you could. You could enact a conspiracy. That says, okay, So, since we're coming up with an analogies, here's the one I came up with yesterday. Barack Obama tells me told me a bunch of years ago, if I like my doctor, I can keep my doctor. At the time, he said that he knew that was not absolutely that was not possible under the Affordable Care Act. They acknowledged later that it was kind of a lie to get the thing passed, which to basically nationalize

the gigantic part of the federal budget and the federal government entitled programs. Was he defrauding the government the people of America? Well, I guess it depends on who we said it to. Wow, so well right, But Trump is in charge. Even Smith has not gone so far as to say that lying to the public is a crime. I think he's close, very close

to it. So, you know what, So, so just clarified this stuff for me, because I know you must be really tired of doing this, because basically, what you do when these things happen is you have to go and painstakingly explain to people what it really means. So there's a huge amount of pushback on this, which is basically and I think that will be the part of the Trump defense. It's like, hey, hey, he can say anything he wants First Amendment, right, And then the second part

is what you said isn't really relevant. Which was interesting to me was that, well, it didn't matter. He knew that what he was saying was false, and he was lying so that he could remain in the White House. So his mental state in at least in the indictment is actually part of the indictment. When I read it, his mental state was important. Jack

Smith thinks it's important, but you're telling me it's not. Well, let me try to put this in two different buckets because it raises two different concerns, right, So, well that's me. You know, I'm very complex. I'm a complex thinker. Yes, and you require so much new ucell. Yeah you gotta worm, yeah yeah. So um, you know I used to cases and if the you know, if the dons in the in the clubhouse with a bunch of the guys and they're deciding, like what are

we doing tomorrow, and he says, I want that guy whacked. I never once in all the years I did mafia cases heard of First Amendment defense. I was sizing right different. So the way that we usually prove conspiracy and the way that we prove criminal conduct is by speech as much as anything else, because it conveys not only it not only results in action, it

also conveys is what people's intent was when they acted. So it's been a it's long been a doctrine of law that there is no free speech prohibition on the use of words as evidence. What the criminal law prohibits is, or what the constitution prohibits is in almost every context making statements criminal per se, like just for the fact that you say them, the fact that you say

words making that act of a crime. But to the extent that the acts either trigger action or they convey somebody's intent, they are admissible as evidence if you can show that they are evidence of a crime. So, for example, I heard Bill bare on CNN say, try to make this point, but he makes it in further so, the idea that the statute as it's been interpreted by the Fraud Statute as it's been interpreted by the Justice Department to

prohibit deceptive schemes that undermine essential functions of government. What he's saying is that if you have speech that shows that that that's not a problem. And I think it is a problem, but I don't think it's a problem because you're

using speech. I think it's a problem because it's not a crime. The other bucket here is constitutionally speech that gets enhanced constitutional protection, And if you're talking about words that are used or speech that is used politically or in a political context, or in an electoral context, there's obviously a higher interest in the Justice Department and the government generally not using that speech to prove crimes unless

the crimes are very serious. And this more gets into i think, probably prosecutorial discretion than any strict legal prohibition. But the Justice Department ought to stay out of electoral politics unless you have a very clear crime that's supported by very convincing evidence. If you don't have that, and you're doing what I think Smith is doing, which is trying to jimmy something up in a way that puts a damper on people's ability to participate in electoral politics. That's a real

problem as far as constitutional laws. Games, can I ask just one more question. I know James wants to get into, So just go back to Muller reports. As you mentioned, the Muller report said kind of what people say it said, which is like, he didn't do any of the stuff. This Russia hopes was a Russia hopes basically right, But there was obstruction and Mueller said, I can't. I'm not going to process. I'm not

going to indict anyone for obstructions that do I have that right? Well, it seems like people, yeah, people can argue about Muller report, those of us who say, well, the Bull report proves that this whole thing was a put up job, And then people say, oh, no, it doesn't remember because there was that obstruction. Is that am I he missreading that he didn't find obstruction. What he said was that he couldn't he wouldn't answer the question of whether there was obstruction or not. And it was a

complete weasel move by Muller. What he said, which was precious, was it would be it would be bad to make a finding that he had committed obstruction because under Justice Department guidelines you can indict a sitting president, So it would be like indicting the president without indicting him and putting the stain on him in the court of public opinion when he doesn't have a trial venue to go defend his honor. And by the way, here's two hundred pages of what

he did, yea. So in the end, what happened was the whole concept of accusing the president of obstruction of justice if he if it's based on things that the president constitutionally can do, like firing the FBI director, is a wayward idea. So Barr and Rod Rosenstein, who were the you know AG and the deputy ag when Muller filed his report, said, you know, I don't know what we're going to do with this guy because there was it was already known there was no Russia collusion at the time he got the

case. So the one thing we actually need this guy for is to make up finding about whether there's obstruction here or not. And he won't do it, basically abdicated. So they say we're going to look at it, and basically there's a lot of ikey conduct here. But like if if Trump is flying off the handle, that he wants mull Or fired, or he wants Sessions fired, or he wants whatever he wants. That's all stuff he's allowed

to do. And even if some you know, subordinate like a prosecutor, thinks that he took an action he was allowed constitutionally to take for a corrupt reason, right, it's not obstruction. So they looked at it and said, there's no obstruction. Okay. So um, special prosecutor Andy McCarthy, does he indict Trump for the January sixth stuff? No, not taking Trump

out of it. Rob. If a prosecutor, when I was a boss in the US Attorney's office, if a prosecutor brought me an indictment that was based on a theory of fraud that the Supreme Court had slapped down like five minutes ago, I would tell him that he needed to get caught up on his reading, you know. Okay, So I think that's what he did. Here, a special prosecutor, a special process heter Andie McCarthy walks through the hotel buffet of the you know, the brunch, and all the tables

are out there. He can choose any one of these Trump cases or a future case he wants to take and to make your be successful with which one do you like? Which one would Andie McCarthy think this is going to be easy, I can I could go home at four. I think the Moralogo case is that case. Now. I don't think it's going to be easy on the prosecutors who have to do it, only because I've been through a

couple of these Classified Information Procedure Act litigations. It's called SIPA, and these are they're in their resource intensive prosecutions because they feature what I would call like a free trial trial of the trial, in other words, before the case goes to the jury. I've been asked, like a number of times, do you have to get clearance for the jury in the moral Ago case.

The way it works is you have to litigate prior to trial what classified evidence is admissible, and then once you figure that out, the court tells the government you have to declassify this stuff. And if they don't want to declassify it, they can propose a substitution that puts the defendant in the same position to make whatever arguments that he would otherwise make to the jury, but withholds methods and sources and that kind of stuff. That's not always practical to do.

So it's the one weird area of law where the law allows the Attorney General to order the court not to allow admissible evidence into the case. But while the government, the executive branch, is the master of classified intelligence, the court is the master of the legal proceeding. So if the Attorney General orders the judge don't let this submissible evidence in, the judge can't let the

evidence in. But the judge can dismiss counts in the indictment that the evidence is relevant to, or dismiss the whole indictment if it comes to that. So that takes a long time to do. We had a SEPA litigation in the blind Shake case that you know. I mean, it wasn't the only thing going on, but we've litigated it for about a year and a half. I had a real problem getting information out of the CIA. It was all about like what were we doing in Afghanistan and who was our cut out

and all that stuff. But after eighteen months, I think at the end of the rainbow, I ended up reading a nine line stipulation to the jury at the end of the case. So it's a lot of work for what sometimes is very little at the end of the rainbow, so that part of it is going to be resource intensive. But the actual case, I don't think it is a hard case. I mean, I just think it's a pretty black and white violational law, and it looks to me like the evidence

has gotten stronger over time. Speaking of cutouts and pro Russian members of Ukrainian oil companies, gas companies before my then revolution, What are we looking at with Biden here in terms of legal trouble. Can you see the will or the means or the actual case for impeaching him now? Well, I think there should certainly be an impeach impeachment inquiry. I heard and I agreed with Charlie before I came on that there's obviously more evidence here to, you know,

just to justify an investigation. I think there's more evidence here than what they actually impeach Trump for the first time, you know, the actual oracles of impeachment where if you remember in the Ukraine impeachment they had to call it I can't remember who was it called abuse of power, But the reason they had to call it whatever they called it was they couldn't come up with a penal crime that he it commit so here, Uh, you know, I

think you have a lot more evidence and if the poll Manafoord case is the model, and that's the closest thing I can think of that that comes to

what you know Hunter and company were up to. You know, they charge that as a tax case of money laundering, failure to register as a foreign agent, etc. So it's a Capone stuff, right, Yeah, Well, it looks like there's a there's evidence of real crimes and when they bring money laundering in, money laundering has very heavy penalties because it's customarily associated with organized crime and drug trafficking. So for that reason, it's it's it's got

very high penalty structure. So these are real crimes. As to Biden, you know, it looks like the constitution says that you could be impeached not just for high crimes and misdemeanors, but for treason or bribery. And a lot of this looks like bribery. So you know, I don't want to get ahead of what we know, but like, there's there's pretty significant evidence of bribery here, right. I wish al Capone had taken up painting, you know, I had become a cubist painter and started selling all of his

work to launder his money to people who wanted to. You know, the whole dodge that we have with Hunter in his are just imagine all of the great crime families, all of the dons, all of them taking up painting as the stylistic wasn't Hitler. Wasn't Hitler a painter, yeah, and a mediocre one really, but a dog lover. I'm glad was God went all the way here, you know, to end up maybe on on on a gaseous note, because I all my questions have been answered here pretty much.

It's interesting that you and Rob and probably Charlie take refuge in this charming thing that you call constitutionality. I mean, yes, I too share your concern for the Founding Document and the preservation of it. But we have a new generation, and we have a party that is increasingly disinclined to believe that free speeches as absolute as we'd like, as a matter of fact, that it's the government's job to protect us from misinformation and from hate speech and all the

rest of those things. It seems to me that even if there's no there there when it comes to criminality on Trump's part, the fact that he said lies is almost enough now to justify a criminal investigation. I mean when Charles was saying, rob was talking earlier about the Obama statement about the amount of your doctor I mean at the time, Yeah, politicians lie. We accept

that it's built in, it's baked in. But now it seems like we're getting to a point that politically, you have a party that would certainly like to prosecute somebody simply for lying because the end result is hateful. When Charles mentioned, could it possibly be that they would go back and get Joe Biden for unconstitutional lifting of the student debt? Well, no, because that was a good thing. His heart was in the right place. The objectives were

all truistic. Do you see us actually drifting into a place where this sort of political intentional desire to criminalize statements is what we're getting to. Yeah, I think we're there already, And I think the more dangerous thing is the criminalization of the things that you say that are true. You know, anybody who says things that are untrue, if you're saying in a legal context or in a financial context, you're probably on the border of fraud or false.

Statements that are actionable and that sort of thing. So, you know, false statements is one thing, but what I worry about is true statements. And I started to complain about this during the Obama administration when they co sponsored, i think with Turkey in Egypt, a UN resolution that wanted to make it a crime and impose on every country the obligation to enact in its criminal

code a prohibition against speech that would cause hostility to religion. And it was clear that there was only one religion obviously that they were were talking about, but you know, they had a lot of other stuff in there too that you could legitimately criminalize. But if you just parsed it down to that,

you can't criminalize speech that would cause hostility to anything in American law. And yet the Obama administration tried to sort of end around the Congress by signing onto that with a bunch of countries and then try to, you know, the same way they did the Iran deal, not go through the treaty provision,

not go to Congress for enabling legislation. Basically make a deal with a bunch of countries and then impose it as if you could do it by customary international law or something along those lines, but they were the left was all in

on this idea that you could criminalize that speech. And what they wanted to go after were you know, for example, people like the same people who about purged from their gigs as FBI lecturers because they were teaching people about the history of jihad and and you know what its roots in Islamic doctrine was. All those things they were saying were true, but they wanted to outlaw them in the interest of you know, uh, not humiliating Muslim countries or not

upsetting them. And mainly it was like a lot of it was like Heckler's Veto kind of stuff, where you know, it's now supposed to be your fault if you say something that makes somebody else violent, rather than their fault that they're violent irrationally. So I think this has been you know, that goes back to two thousand and eight, two thousand and nine, so we've

been there for a long time. It's just snowballed, and I think it's become one of those things where it's like, yeah, it's just, um, what do they say about bankruptcy, Like how did you go bankrupt? You know, wells over a long time, and then it was all at once. It seems to be like it seems to be that we're like, we're there with this stuff. You know, you could see the seeds a bit going along over the last ten plush years. But I think we're it's

really hitting us over the head. That's that's a Fitzgerald quote. I believe. How did you go broke gradually? Then suddenly, Charles, you had something to do? I do. I have a final question that I've been wondering about for a while, Andy, what is the limit on what you can be prosecuted for in conversations with a lawyer. So one of the defenses that I've seen against this indictment is it's not a crime to follow bad legal

advice. So if you go back to the Trump administration, I remember there were some progressives who wanted to prosecute him for a conversation you have with Don McGann. Yeah, if I call up my tax lawyer and I say, what would happen to me if I didn't pay any of my taxes? It's not a crime for me to ask him that question, obviously, But if I call up my lawyer and I say, I'm thinking of blowing up my local Wendy's, Like, you know, would I get prosecuted for that?

And then he says, no, you wouldn't, And then I go and do it. I can't turn around to the court and say, well, my lawyer said that I'd get away with it, right, So you know, I'm just just being prosecuted for taking bad legal advice. Right now, it was the blowing up the Wendy's that did it. Like, where is the line here? Because there has to be some room, obviously for people to say in good faith, Look, I think the interpretation of this law

is wrong. I mean there are lawyers who for fifty years said rov Wade was wrong. Obviously that's not a crime, But where's the line? Yeah, just like the sign Feld episode where you know he has sex with the janitor on the Yeah, was that wrong? Because someone told me if there

are a bit of rule against that. Yeah. But I think I think the divide you're talking about is the one they always talk about between you know, malam and say and malam prohibit them laws, Like there are certain things that are evil innately and you can't get out of the having the mental state for committing them by like passing it off on. You know, my lawyer told me it was okay to burder that guy. That's you know, you

can't. But I think the more you have laws and especially regulations that now have you have some regulations now that have criminal penalties attached to them, and even if they're not criminal penalties, to heavy duty financial penalties as well. I think the more that you get into the area of things that we prohibit because we decide to prohibit them, not that are innately wrong, the better you have a defense that you relied on the people that were expected to rely

on, like accountants and lawyers, and they steered you wrong. Which ones there? I think, Well, this is a different issue because I think with respect to with respect to Trump, what you have in the indictment is the prosecutor's version of what he was told for the purpose of proving that he

knew what he was doing was wrong. Okay. And I think what Trump is going to say is, if his lawyer is clever enough, I think he'll say the indictment itself shows that it's reasonable as far as the government is concerned, to deduce what somebody must have known by what other people were telling him. Now let me bring you the hundred witnesses that were telling President Trump

things that the grand jury was never told. And you know, they'll bring in a lot of witnesses who told them there was a lot of fraud. And I you know the other thing, Charlie, that I would do if I were Trump's lawyers, is you know Bill Barr could come in and say, I told him that was wrong. I told him these three fraud fraudulent voting things that he was relying on were wrong. They'll bring in a bunch

of people who told them that. You know, in connection with the Pennsylvania case that the Supreme Court refused to take about whether the court and the election officials had the authority to change the statutory rules in Pennsylvania, Clarence Thomas wrote a dissent when the Court wouldn't take that case, in which he said, you know, look, we need to take these cases before the election, because if you wait until after the election, the time is too compressed.

There's no reasonable way that you can figure out, investigate and litigate whether there was fraud. And I think what Trump is going to say is, you know, whatever everybody's state of information was in December, say early December when I spoke to bar look at all this evidence we now have that the election was stolen. And one of the things his lawyers have been talking about is the fact that for the first time, because Jack Smith has indicted him,

he he now has subpoena power. So for the first time he can go out and actually use subpoena power to investigate what he says was the election fraud of twenty twenty. And I think they're going to try to litigate that in this case. I know, you got to go. I got one. I just I got to ask you one question of Bautist indictment in general, right, if you were looking at all the bits and pieces of it, isn't the certification of the false electors the strongest case that Jack Smith has.

You know, I don't think it's going to be that way, Rob when it all, when everything comes out. Now, maybe I could be wrong about this, but I always understood and I've read, you know, some of the things that have been said by the electors with the so called fake electors in Georgia, where their point is that they were contingent electors that they were signing on to be electors in the event that right, And I think that's what you know. Now there's people in Trump's can who called them,

you know, fake electors or whatever they call them. Yeah, but you know, I think this is one of these things that actually reads better than it played at the time. I mean, at the time on January sixth, nobody thought those slates of electors were going to be a Yeah. It wasn't like they were. They were kidnapping the electors and showing up with their big idea. Okay, that was the That's the only thing that was sort of in my head. And I think that's that makes sense, That makes

sense to me. Yeah, Andy, we hope to have you back when the Department of Justice indicts Ronda Santis for fraud because his cowboy boot heels give the appearance of him being taller than he is, and this was a means of defrauding the electorate going forward. I mean, I'm sure they got there working up something. Anyway, great to talk to you and hear from you,

and it'll listen to you and get the analysis. As ever, we'll see you again, and we'll see you on television and scattered about the podcasts and here and there. Thanks Andy, Thanks guys, thank you a weekend you too, We shouldn't we won't. Um. We might have one of those weekends where you have somebody over, but you, the listener, could possibly have somebody over that you don't know yet. What did Will Rogers say

you never met a man he didn't like. Let's the other line, that stranger is just a friend you haven't met yet, or some sort of you know. I know they're both nauseating that line, I've never met a man I didn't like. I think it's one of the most dishonest things I've ever been a square, just bs. But anyway, now and then you do meet new people and you realize, wow, it's good to meet new people.

And that's where Rob Long comes in. Not that Rob's going to show up at your door, but he's gonna tell you how you can have people show up at your or go down well, you know, James, of course, you know Ricochet is online club. You could join Ricochet. You can mix it up in the comments, mix it up on the member feet and in the member's lodge, right, but you can also do we alls do meetups irl. Meetups in real life is the people say um and the

summer now is coming to a close. Our last summer meetup is in Cookville, Tennessee Labor Day weekends. That's September one through four in Cookeville, Tennessee. So if you're in the area and you want something to do, the bunch of Ricochet members are getting together in Cookville. That is always a good time. I highly recommend the meetups if you would like to. If you're a member, I want to go, go. If you're not a member

and you want to go join Ricochet and then go. If you are a member or non member and you're like, yeah, I don't know, Cookdills far away or Labor Day we can have booked and you want to set something up for the autumn, here's what you do. You go to ricochet at com you join, You go to the member feed that's a member's room, and you say, hey, how about a meetup here at on this date, and I guarantee you Ricochet members will join you. That's fun. I

wish there was one here soon too. I'm just I'm sorry. I was stunned for a second there when you said that summer is drawing to a close. There's more horrifying words, right, you know what that means, James, it means NFL season is approaching. Yeah, there's that, There's that, there's that, and we can we can we can look for that. There's all these compensations and awards that the life gives to us. Charles, you said that you saw Um Oppenheimer, Rob. I assume you've seen them

both. I've I saw Barbie instead of Openheimer, and I was wondering if if either of you had seen Barbie, and apparently Rob hasn't. It's an important movie to understand, the night guy. So Charles, you're rushing off to it soon, right, Sure, you're painting your golf cart pink and heading off to the to the I take it. No, well you know what, guys, James, I was waiting to see where you were going

with that too. No, the sort of thing. Um, but you want to now, even when it when it shows up on streaming some day, you you ought to watch it. Um. I think it's been foundly misunderstood and mis characterized by a lot of people in the right online. I think in one sense the movie is half an inch deep. But there is so much there that you can ascribe to various schools of thought and interpretation and as such, because it's made by fairly smart people, it's an interesting cultural

artifact. And whether or not you think it is the wokest thing in the world or you realize that it's got a lot more nuance built into it, the opening scenes of this movie are something that is more anthropologically profound than ninety nine percent of the stuff that that was turned out in the year twenty twenty three, and not in a good way, my dear, And that's what

makes it interesting to me. So what you're telling me is that for the good of my own intellect and edification, I have to watch Margot Robbie for two hours. Yeah, you are willing to do that for your country, than good for you. It is, yes, it is not exact. It is not it's odd to say that a movie with Margot Robbie in it for two hours is actually hard on the eyes. But it is sort of hard on the eyes, just simply because of the color palette and the rest

of it. But to dismiss this as just some this this woke screed, I think is a big mistake. No, I haven't done that. I just didn't have a great desire to see it because I'm not. I have never been in a great Bobby Target. Well, this is the brilliance of it. I mean, here's something that has been derided for decades by feminist as being the epitome of the of the Chauvin's patriarchal system that keeps to women

it down and reduces them to their image. And all of a sudden, now Barbie's hot, and in an ironic postmodern sort of fashion, it's okay to embrace Barbie and everything connected with it. It's fast. I mean, it's a great job by Mattel of repositioning themselves. And you know, I look forward to the Jenga movie that's inevitably gonna follow. Yeah, there's a

polypockets move. As a dad who went through who saw these phases move through our own household and has his own relationship with Barbie, you know, I gotta find the the hot Barbie this year for Christmas. I have to get the game. I have to hear that song again. I have a different relationship with it, and maybe that's why I was curious. But no, don't put it this way. If I had to say how I would want

to spend three hours on a beautiful summer evening. I think Barbie and Margot Robbie would be preferable to Oppenheimer in Imax, although I do want to see that. Yeah, I'm going to see it too. Well, there we have it, there's your We we dig deep here when it comes to our cultural reviews, you know, not that mainstream stuff. Now we're talking Barbie and Barbie in the Bomb, which is apparently the only movies that exist right now at this day. Squeezing out mission impossible. It seems to be in

the public imagination, which is supposed to be something of a pity. Since Tom Cruise our last, our last action hero, our last, the last guy who seems really invested in a molecular level in the art of cinema. Who would have thought that back in the days of a risky business. Anyway, risky business would be you not following through the promise we made at the top of the show where you go and join Ricochet. Well you forgot you

made that promise. We did, We heard you. And also you promised, you promised to go to Apple where the podcasts are and give us five stars, because that would be great, wouldn't sure. But you know, here's the thing. Ricochet five point was right around the corner, and you're gonna love it so much that you don't want to comment over and over and over about the magnificence of the design and the brilliancy of the men who have of the people I'm sorry, who have Steward steward this into being, so

you got to join. You gotta have a little skin in the game. As Rob said so many episodes ago, six hundred and fifty two, I believe in order to comment on Ricochet, that's what keeps it sane and civil. At the Code of Conduct moderators then a group of people who are really interested in having intelligent conversations and some fun nonsense as well. Gennlemana wish you a good weekend, and Charles, it's been great as ever. Rob regards

to Gotham. We'll see everybody in the comments at Ricochet four point zero, but soon to be five next week. Next week, Fellas Ricochet joined the conversation