Breaking Down the Trump Indictment with Andy McCarthy

National Review. He's also a former Chief Assistant United States Attorney and the Southern District of New York, so he understands the New York court system. So stay tuned for this episode with Annie McCarthy. So, Annie McCarthy, I'm so glad to have you on the show. I've just obviously I'm familiar with your work work colleagues at Fox, but just in watching you on TV and reading everything you've written, you just do such a good job just thoroughly breaking

this down. I'm so thankful for you to take in the time to join the show. Well, thanks so much, Lisa, It's great to be here, you know, so Andy. Obviously a wild time in American history. This is clearly unprecedented. So thirty four felon accounts. Can you take us through in detail what exactly Alvin Bragg is accusing Donald Trump of doing. Well, the basic crime in terms of what the legal counts are, is very different, Lisa, from the story.

So why don't Why don't I start with what the crimes are and then I can get to why the story is incoherent? That'd be great. So the crimes are what in New York is generally the misdemeanor of falsifying business records and to commit that crime, which is you would get less than a year from in jail, even on the books. But in New York, Alvin Bragg basically doesn't prosecute anything. So this is the kind of case

that wouldn't need to be brought against somebody normally. But what you would have to prove is that somebody made false entries in their business records and they It's not enough to show that the entries of false. You have to show that the person did it with fraudulent intent, which usually means that you're trying to swindle someone, right,

You're trying to take money or property. The state argues for a kind of a more broad based definition than that, but for now, that's that's pretty much what falsifying business records means. Now in New York, falsifying business records only

has a two year statute of limitations. And the course of behavior that we're talking about happened in twenty seventeen, So ordinarily, if that's what you charge, he'd be out of luck now because that would have been time barred by probably by twenty nineteen, no later than twenty twenty. But what Bragg is trying to do, and the reason he had to go to a grand jury is juice up into a felony from a misdemeanor. The reason I

say that's why he went to the grand jury. In the United States, the Fifth Amendment guarantees you the right to be indicted by a grand jury, which means the community has to make sure that the government has enough evidence before the case can proceed to trial. So what a grand jury is supposed to do is find probable cause that the government has a case, and then you move on to the indictment stage. But under the Fifth Amendment,

you only get an indictment right for a felony. For a misdemeanor, the prosecutor can charge himself by what's known as an information. So here the reason Bragg was in the grand jury as he wanted this to be a felony case. And in New York, you can inflate the falsification of records from a misdemeanor into a felony if you can show that by committing the misdemeanor, committing the falsification of records, the defendant was trying to conceal another crime.

So what he alleges is that Trump was trying to conceal another crime by making full centuries in the Trump organization records, or at least causing false entries to be made. So that's the thirty four counts are all basically that charge. And the way he gets to thirty four is there was a series of payments that Trump made to Michael Cohen. Michael Cohen used to be Trump's lawyer. He's the one who laid out the money for this hush money agreement,

which is known as a non disclosure agreement. He paid one hundred and thirty thousand dollars to Stormy Daniels, the porn star whose real name is Stephanie Clifford. And then the arrange with Trump was to repay Cohen over the months of twenty seventeen, so basically he got a monthly check and to bring that about. What would happen is Cohen would provide an invoice. Either Trump or the Trump organization would write a check for him, and then an

entry went into the books. So even though this whole thing is really one payback of a loan, it was split into installments monthly. So Bragg basically broke it down into those installments, but not content with that. He broke down each installment to three separate acts, the invoice, the writing of the check, and the book entry. So that's

how he gets up to thirty four. And we can talk about that, but that's kind of a practice that the Justice Department in federal cases tells prosecutors they shouldn't do. I think when I tried the blind shake in nineties for you know, terrorism and mass murder conspiracies and all that stuff, I think I brought five counts. So this is thirty four for the heavy duty crime undoubtedly of

falsifying business records. So anyway, those are the those are the legal that's the legal counts, and I think it's important Lisa to say counts, because those are allegations. I have a hard time calling them crimes because I think one of the big flaws in this indictment is that he hasn't actually stayed at a crime, because that the felony that we just discussed. You're supposed to show that

the person falsified the records to conceal another crime. Bragg does not state in the indictment what the other crime is that Trump supposedly was concealing. So right off the bat, I think he's got a problem in not stating a crime, because that's really the main function of a indictment is to tell the defendant what he's accused of doing so that he can prepare his defense. So I think, just as a legal, technical, clinical matter, the indictment fails in

what the basic purpose of an indictment is. But let me just say quickly the reason I say the story is incoherent is Bragg's rationale for charging this case when it's perfectly obvious that no one other than Donald Trump would ever have been charged with this is that Bragg's theory is Trump stole the twenty sixteen election by fraud, namely by not disclosing these arrangements, these hush money deals, and there are at least he lays out three of them in the Statement of Facts that he filed along

with the indictment. But the thing about it is non disclosure agreements are legal. In fact, there are a staple in the civil justice system of how litigation gets closed out and people make agreements. We frequently hear that, you know, a lawsuit was dropped and the party settled and it was an exchange of money and everybody agreed not to talk about it anymore. That happens all the time. So there's nothing illegal about non disclosure agreements. So, according to

brag Trump stole the twenty sixteen election by fraud. And yet when you look at the indictment, the charges run from February fourteenth, twenty seventeen, to December fifth, twenty seventeen, so they start basically four months after the twenty sixteen election was already over. It's inconceivable that you could commit a fraud in twenty sixteen based on acts that you don't carry out until months after the twenty sixteen event is over. So the think it doesn't make any sense factual.

So why do you think he went with the twenty seventeen date? What I had heard is I think the transaction was in I believe October of twenty sixteen. So why do you think he went with twenty seventeen? Do you know the basis of that? Yeah, the same reason that he only charged it gets when it got down to counts. He only charged the Stormy Daniels nondisclosure agreement, not the transactions attendant to the other two hush money arrangements that they talk about in the statement of facts.

The reason is he needs Trump to be an active participant. What happened in October of twenty sixteen is that Michael Cohen paid the money to Stormy Daniels. What happened from February to December of twenty seventeen is that Trump paid Michael Cohen. So in order to get the counts against Trump, he has to go to Trump's personal activity. So that's the stuff that happened in twenty seventeen. So that makes sense. So but even right there, in laying this out at

the beginning, I mean, there's already three glaring issues. I mean, one he's already essentially being denied due process even in the indictment itself, because it doesn't lay out what crime he was pursuing in the pursuit of a felony, and then secondly you have the statute of limitations concerns, and then you know, thirdly, you have the timeline of it just being acidinine that somehow he was defrauding an election when the transactions are after the facts, you know right there.

You know, I'm not an attorney, but you know, even just from a common sense perspective, you know, that's all a head scratcher. Also, you know, I would assume that the crime that he's allegedly concealing, or if this is having to do with the twenty sixteen election, those would be you know, federal aspects. So what jurisdiction does a local DA have to enforce federal law? Yeah, let me answer that, And I want to come back to the first point you made, because I think it's really important,

which is the process problem. The reason. You know, Bragg is not an idiot. He's been a prosecutor for a long time. I think he's not a very good prosecutor, and he's been unethical way he brought this case. But he's not stupid. There's a reason why he doesn't want to say what the other crime is. He knows that is problematic, that he hasn't that he hasn't done that. And the reason, Lisa, is every other crime that he

wants to cite is a problem for him. And the two main ones that he has sort of thrown out there without committing himself are federal campaign finance violations and state campaign finance violations. But he knows that on the federal side, he doesn't have jurisdiction to enforce federal law, and on the state side, he knows that the state election laws apply only to state. Why you know, state elections elections for the state office. And this is obviously

an election for the presidency. That if imagine how chaotic it would be if every aid had their own election laws that applied to federal elections, so that if you stood for national office, you would have to comply, especially for the presidency, with the fifty different sets of laws. So clearly, when Congress comes in and has a set of election laws that apply to federal elections, that preempts

the state laws. They can't apply their laws. And the state by their own terms to state laws don't apply to federal elections. So that's why Bragg doesn't want to go there. And what he's relying on as an ambiguity in the statute. What the the felony Falsification of Record statute says is it's a felony if by falsifying the records the person intended to commit or conceal and the term is another crime. So the statute doesn't say another

New York state crime. But since we're dealing with the New York State penal Code, the presumption has to be that when it talks about another crime, it's talking about another New York crime. There's no reason to think it meant another federal crime, or that you can put federal in there just because the state legislature did or it did not, you know, cite to what authority the crime

they were talking about was. You have to assume it was a New York crime, because otherwise, what's the limiting principle? You know, is a crime against the law of France good enough? You know, is a Shariah crime good enough? So obviously what the New York legislature was talking about was a New York crime, and Bragg knows that, and that's the reason he doesn't want to state a federal crime. Also,

you know, he's got other problems with that. Number One, I don't think these expenditures, whatever you think of them, amount to a to in kind campaign contributions under federal law. So he not only has to show that these were if he had jurisdiction to enforce federal law, he would not have to. He would not only have to show that these were in kind federal campaign donations, he would also have to show that Trump knew that, and that he was intentionally trying to conceal that when the records

were falsified. And there's no reason to believe. I frankly don't think there's any reason to believe these were campaign finance actions under federal law. The thought that Trump knew

they were is far fetched. And I would just point out that in the last big campaign finance case that drew a lot of attention to John Edwards case, which involved a lot more money than this one, the Federal Election Commission and the Department of Justice, the two components of the federal government that actually do have jurisdic SHOA campaign finance violations disagreed on whether these were in kind

payments or not. So the thought that Trump would know what a campaign finance violation was when the two regulatory arms of the federal government can't agree on it is very far fetched. And that puts aside, you know, a whole host of other problems such that, such as that most campaign finance violations are handled by paying a fine to the FEC. They don't criminalize them. People don't get indicted for them. The Obama campaign had a two point five I think it was million dollars violation in two

thousand and eight. You'll be shocked to learn, Lisa, that the Obama Justice Department decided not to indict the Obama campaign. Now that's shocking, Yeah, it is shocking. And they let them get off with like a three hundred thousand dollars fine. So that you know, Hillary Clinton's campaign got fined by the FEC for mischaracterizing the way that they used to steal dossier, right, They they categorized it as legal fees and it was actually opposition research. So you know, they

don't criminalize this ordinarily. They're just you know, they're criminalizing it for this guy, even though they don't actually have a crime. So I think you're right to point out that the big flaw in the indictment is the failure to state what the crime is, and that if I could that just it brings me back to your original point about due process, because there's three real problems with this that I don't see how Bragg can overcome. One

is just the obvious. The point of an indictment is to put a person on notice of what the crime is so he can prepare his defense. If you don't tell the guy what he's accused of, he can't prepare a defense. So the indictment fails even as an indictment. It doesn't do the thing an indictment supposed to do. The second point of an indictment in American constitutional law is an indictment is supposed to be the way that you plead double jeopardy if you ever get charged again

with the same crime. So, in other words, again the indictment has to stay say what you're accused of. So if another prosecutor down the road ever tried to do that again, your indictment is your evidence that they can't do that, because you've already been prosecuted for that crime. But again, if the indictment doesn't state the crime, then it can't perform that function as your double jeopardy defense either.

And then I think the third thing, which should end up being a pretty big issue I would think in the pre trial motions is the prosecutor's function in the grand jury is to be the legal advisor for the grand jury when they make their finding when they vote for the indictment. And what technically, what the grand jury has to find when they indict is that every essential

element of a crime is supported by probable cause. Every crime, whether it's a federal crime or a state crime, is broken down into components which the law regards as or calls essential elements. So for example, if I accused you of armed bank robbery, the essential elements would be that, yeah, you didn't do it. You're not guilty. See I didn't

do it. We're already we're already advancing the ball here, just like the essential elements would be that you know you entered and robbed the bank, you were armed, and you intended to do it. In other words, it wasn't an accident or a mistake. So that's the kind of thing we're talking about when you say that somebody you have, the government has to prove guilt beyond a reasonable doubt at trial, or the grand jury has to find probable cause in order to indict. That's what we're talking about

on those essential elements. And the reason this is important is Bragg. If the grand jury indictment is proper, Bragg has to have given the grand jury legal instructions on all of the elements they had to find in order to find that there was probable cause to indict Trump. So if he didn't put the crime the Trump was supposedly concealing in the grand jury, I think the chances are very high that he didn't instruct the grand jury

on what that crime was. And I don't see how the grand jury could have properly indicted on that crime unless Bragg told them what the crime was that Trump was supposedly concealing. But it seems to me it would be very peculiar if he went through that with the grand jury, told the grand jury what the crime was, and then didn't put it in the indictment. That would be very strange. So I suspect that he probably violated the law in the grand jury which will be an

issue in the pre trial motions. We're going to take a quick commercial break more with Andy McCarthy. The Feds decided not to pursue campaign finance charges regarding these payments. Do you know why and does that mean anything for

this case that Trump's facing out of New York City? Yeah? So, I think that the way the Southern District of New York, which is my old office in the Federal Prosecutors in Manhattan, they were trying to build a case against Trump, and a lot has been made of the fact that they got Michael Cohen to plead guilty to two charges of campaign finance fraud in connection with these payments. One was for Stormy Daniels, the other was for the other woman involved,

Karen McDougall, who Trump also is. Allegedly had a fling with like in two thousand and six two thousand and seven, and she was paid one hundred and fifty thousand dollars at least in value. But the reason they haven't charged that transaction is no money changed hands involving Trump and

the Trump people. Rather, what happened in that case was she was paid one hundred and fifty thousand dollars by Trump's friends at the National Enquirer for the exclusive rights to her story, and Trump Cohen, and Cohen was supposed to reimburse the National Choir and then Trump would have reimbursed Cohen, except the National Inquirer decided it was the better part of valor that they just eat that expense

and not take it from Cohen. So ultimately the only value that changed hands was between the National Choir and McDougall. So that's the reason Trump isn't charge with that. But the federal prosecutors charged Cohen with that, and as a result, you hear a lot of apologists for Bragg say that, of course he's a campaign finance violations as to Trump,

because Cohen already played guilty to them. And what I think people need to understand about that is Cohen played guilty because the Southern District had him over a barrel. They had a big fraud case on Cohen. He had a bank fraud charge which in federal laws thirty year count involving a multimillion dollars line of credit, and he had five tax evasion charges that involved four million dollars of undeclared income. So he was looking at a lot

of time in prison. He wasn't going to get anything close to thirty years, but he might have gotten seven or eight years in prison for this, And like most defendants who are in that position, his only way out was to cooperate with the government in making other cases, because then under the federal sentencing guidelines, the prosecutors can files what's a motion that's available under the guidelines, which gives the court the authority to sentence the guide to

no time or much less time than the sentencing guidelines prescribe. So Cohn's problem is that all of these fraud counts that he was involved and don't implicate Trump at all. This was his own business that he was involved in in New York, and the Southern District wanted to build a case against Trump. The only thing they had on Trump that involved Cohen were these two hush money arrangements, so they got Cohen to plead guilty to those two counts.

I think the reason Cohen agreed to do it is the fraud counts against him were so severe that the campaign finance counts, which were comparatively from minor amounts of money, did not add anything to his sentencing. Exposure. It didn't change what his sentence would have been at all, So all it was was adding two more counts onto a laundry list of things he was already going to plead

guilty to. It didn't add any time, So from his perspective, all it did was make him a more attractive witness because he was willing to say that Trump was implicated in these campaign finance violations. And from the Southern District standpoint, it was a no lose proposition because they're trying to build a case against Trump. When Cohane pleaded guilty, that meant the case would never be tried, so the campaign

finance violations would never be challenged. And in pleading guilty, you waive your right to appeal, so the Southern District was never going to have to defend those charges on appeal, So everybody wins right. And what they were trying to do was build a case on Trump. You asked me, why didn't they bring this case after all, if they got Cohen to plead guilty to it wind up bringing it against Trump. And the answer is because in the end,

they're not really inkind donations. And I think the Southern District and the Justice Department understand understood that if somebody actually challenged these in court, as you know, are they as a matter of law in kind campaign donations, they would have lost and it would have been humiliating. So they decided if they were going to make a case on a man who was then the President of the

United States. I think everybody should agree with this. If you're going to bring a case like that, it should be a very obvious, very serious, this crime that's backed by very convincing evidence, and they knew they didn't have that, so they didn't bring the case. And a lot of people when I point that out, a lot of people say, well, that was the Trump Justice Department. And what I would say about that is, you know, number one, the Southern District of New York is famously renegade when it comes

to political corruption cases. They've done a lot of them in defiance of what the Justice Department wanted them to do. But even if that weren't the case. I don't know if this is late breaking news for people or not, but as of January twentieth, twenty seventeen, twenty twenty one, the Justice Department's been under new management. You know, the

Biden administration. You've noticed, so we noticed, Yeah, I know it haven't we ever, but you know, I mean they've had twenty seven months to bring a case if it was there, and we also know, Lisa, Look, they're scorching the earth. To me, it's not like they don't want to make a case against Trump, right, They're going on them.

They're going after him on January sixth. They're going after him and I think probably going to get him on the documents case, which they've they're now sort of pitching as a grand jury obstruction case rather than documents retention. But we know they're trying very hard to make a case against Trump. They didn't bring this one because legally

it just doesn't add up. Also, the documents, though, seems rather unfair because you know, my understanding is a president ultimately has the authority and so it's sort of gray area in terms of, you know, if he declassified or not. And then it seems like every president has some sort of back and forth in terms of turning over records

or is probably you know, guilty of this. Whereas you know, Joe Biden in the Senate to take stake documents out of a skiff is like you're like malice, like actual malice to you know, to have done that as opposed to you know, just accidentally bringing stuff with you. I'm not the most organized person, so probably best for me not to be a president because I would totally do that by accidents. So yeah, but I've never had classified auguments. For the record, I also did not rob the bank.

So just to be clear in case anyone's listening, you know, so covering committed any exactly, you just gotta laid out there, you know, better be safe than than sorry here in this environment, um, you know, and so obviously you know they're laying out the thirty four accounts to try to stack the deck in the event that it makes it easier to try to lay on one. So his next in person hearing is in December? What options does Donald Trump have in front of him before that date, Kenn,

he try to get this thrown out? What you know, what is the appeals process? Like, what's next for team Trump in this? You think that's a great question. I think that I wouldn't fault them for not immediately moving to dismiss the indictment, because unlike the way it worked when I was a federal prosecutor back in the Stone Age. They didn't get the indictment the lawyers until they were in court on was a Tuesday afternoon, so you know, it wasn't until like two thirty Eastern time Tuesday afternoon

that they even saw this thing. So I don't think that they should be faulted for not having done anything there and then. But now that they've had a chance to digest it, I would go into court. They have a motion schedule, I think for the moment that you know, that court is very congested in cases move very slowly, So what the judge did the other day was set a motion schedule. The government's supposed to start making discovery right away. Trump has until August to make pre trial motions,

including motions to dismiss the indictment. The state has about I think six or eight weeks to respond to that, and then the next time they're all supposed to be in court again is December, which just seems eight months from now. It just seems ridiculous. But if I were Trump's lawyers, I would try to get under the judge's toes. Now, I mean I would, now that you've had a chance

to read this thing. I would go in and simply argue, you know, look, the indictment fails to state a crime, so we shouldn't even be here because they have to state a crime before you can start a criminal proceeding. And I would also be arguing that he seems to be trying to say that he can enforce federal campaign finance law, and my hook to try to get the judge to move on this and go quickly would be

a twofold argument. One would be, this is a state proceeding, but it's got enormous consequence for national electoral politics, and it shouldn't be allowed to hang over the country if there isn't a case here. You know, It's one thing if Bragg stated a serious crime and it looked like he could prove it, then you would just have to go through with that. But here it doesn't look like he has a crime at all, much less much evidence. So I would try to push them on that end.

And then the other thing I'd say to them, Lisa, is because he's purporting to be able to enforce federal campaign finance law, although at least we think he is, and the statutes of New York law do not allow him to do that. I would signal to the judge in New York that if they don't get satisfaction here, they're going to go into federal court and say that make an argument that the Manhattan District Attorney, who doesn't have jurisdiction to enforce these criminal laws, is trying to

do that. And I think the reason you do that is, you know, you try to nudge this judge into taking action. You know this thing he's got right now, he's got it on the slow train, and I think you want him to move on it. And judges, what tends to get judges attention and get them to move faster is the prospect of their work being checked by a different court. So that's what I do. We're going to take a quick commercial break, and then Andy's going to continue breaking

down the indictment against Donald Trump. This a judge specifically has donated two Democrats in twenty including that of Joe Biden. Now they're not big donations, but their donations nonetheless, does that increase his probability if this judge denies him the ability to try to throw this out, to take it beyond that and saying, not only have I faced you know, a corruption from the Manhattan DA, but also a bias judge who, you know, one could argue maybe should even

recuse himself in this instance. He's already demonstrated a bias against Trump in the donations that he's made. Yeah, at Lisa, I think that the one motion that Joe Takapina, who is one of Trump's lawyers, has talked about publicly already is selective prosecution. And I think that they are going to take the background facts about the judge that you just laid out in conjunction with the fact that Bragg brings this case against Trump which he wouldn't bring against

anyone else. As I've been saying all along, I think we call Bragg the district attorney because that's his title, but we really shouldn't look at him as a law enforcement official. We should look at him as a progressive Democrat who's been elected to office on a campaign to go after this one guy. I mean, basically, Bragg's pitch to voters in New York was two things. One, if you elect me, I won't enforce the law which his

progressive bases likes. And as a result, but he's more famous for in New York is taking actual felonies and you know, degrading them to misdemeanors or not prosecuting them at all. So it's very rich that here he's taken something that's a trivial misdemeanor, if it's even that, and try to inflate it into a felony. But you know, he campaigned on getting Trump, which is unseemly for a prosecutor, and they and the voters of Manhattan elected him on

the promise to get Trump. So I think both those things go into the mix when Trump brings his motion that this is an unconstitutional selective prosecution. You have the judge, you have the prosecutor, and you have the jury pool, which you all seem to have it in for him. You know, he'll have to make the case on the judge, and you know, Trump is saying very aggressive things about the judge who has handled other cases involving the Trump organization.

Trump's lawyer is, on the other hand, are saying very different things about the judge and that, like, you know, they don't think that there's a basis, at least at this point to say that he's unfair. But we'll have to see how he handles the case and how that unfolds. But if I'm Trump, the argument I make is not just based on the judge, or even just based on Bragg, or even based on the jury pool. I would I bring the whole thing together and just say, you know,

there's no way that this is a fair proceeding. Well, and obviously they the concern at all of this is, you know, we're talking about a liberal city and a liberal state, with liberal judges, with a jury of your peers or probably a bunch of liberals, and you know, so a lot of people are concerned, you know, can

he get a fair shake in that environment? In your estimation, with your experience of having been in the you know, the Southern District of New York on the federal level, but you know, kind of understanding the court system in the state of New York, what happens with this? How does this go down? Do you think I think it gets thrown out prior to trial. I don't think this case ever gets tride. Do you think he can get

a fair shake? Yeah, I think if the judge, you know, I don't think we should jump to the conclusion that the judge is unfair. You know, It's one thing to say that, you know, he has political preferences. Everybody in New York has political preferences. It's another thing to say that he won't do his job right and that this seems to be an egregious set of legal flaws with respect to this particular indictment. And Lisa, let's remember, even the left wing commentariat is out there saying, oh boy,

you know, Bragg really laid an egg here. So it's not like the judge would be the first person on the political left of center if you threw this case out to say that there are a lot of problems with this case. The other thing I would just point out to people is that, you know, we're looking at this case in a vacuum at the moment because it's the only one in front of us. But by the time we come back eight months from now, I think even eight weeks from now, this could be a very

different situation. I mean, you know, I think by May you may see charges from the prosecutor in Fulton County, Fanny Willis, who's looking into the Georgia twenty twenty election stuff. And it's obvious that this special council from the Justice Department is steaming ahead. You know, this week probably the

biggest thing in terms of significance. I don't think that the brag case is much but in terms of future significance for Trump, maybe the most important thing that's happening this week is is Jack Smith, the Special Counsel, is putting Secret Service agents in the grand jury on Friday to testify about what they observed in terms of Trump

looking at and reviewing documents. And it's obvious that the reason they're doing that is to try to He's doing that to try to help build his grand jury obstruction case.

What they want to show is that after Trump's lawyers told the Justice Department in June of twenty twenty two that they had done a thorough search of Mara Lago and the thirty eight documents they gave them that day were the only thirty eight documents with classification markings at Mara Lago, what Smith is now trying to develop is evidence that Trump not only knew that wasn't true, but that he actually physically reviewed and moved documents around the

property after that. So that's clearly why he's putting the Secret Service agents. And it's a very weighty thing. The government hates the idea of Secret Service agents testifying against their protectees. It makes it very difficult for the Secret Service to do their job. That is not the kind of thing that a prosecutor does unless he's dead serious

about making this case. And I think you can say that for the way he's handled January six two, because he's now you know, he's getting Mike Pence, who is the highest ranking executive official other than Trump and the Trump administration. He's going to have to testify in the grand jury next week, and he's already also compelled testimony from you know, the Chief of Staff Mark Meadows, and

other top officials in the Trump administration. The reason I mentioned that is the Justice Department is usually in court when these kind of things come up, arguing for a very robust, extravagant interpretation of what the executive branch's privileges are. Here, what's happening is they're eroding the privileges, which will be to the detriment of Biden and all future presidents. Again, I think it's the kind of thing they wouldn't do

unless they were dead serious about making a case. So I think if we come back, you know, a couple of months from now, this may not be the only case, and we may look at this a lot differently. I mean the left ones. I'm behind bars, you know, we know this. And with all these criminal investigations, he's facing the probability that has increased. What happens if he has found guilty before the election, if that is what the timeline would look like, or what happens if he was

to hypothetically win the election and then found guilty. Yeah, I don't think he'll ever be found guilty before the election. And my own view of it is for you for what it's worth. I mean, you're not asking me to put my political head on, but I'll put it on. I think they want him to be the nominee, and I think they realized that the more unfair and provocative they are, and the more it looks like they're using the criminal justice system as a political weapon against him,

the more it gins up the Trump base. We've already seen this week he had his best week politically. It's it's astonishing if you think about like all the things that the Santis is accomplishing in Florida, you know, to see Trump, you know, Spike ahead of him as he's done. I mean, obviously this is just a snapshot and we'll see how it all plays out. But you know, the effect that this is having on the Republican electorate is

exactly what the Democrats want. So I've always thought that they're not going to drop these indictments without thinking through timing. And I don't see him ever going to trial or being convicted, much less anyone trying to impose a jail sentence before at least before he's tied up the Republican nomination. That's what they want. They like, the Democrats, like the

havoc that this is wreaking in Republican politics. As for what happens if he gets, you know, indicted or convicted, you know, the Constitution says that the only qualifications for president are that you be over the age of thirty five, a natural board citizen, and resident in the United States for fourteen years. That's it. There's nothing in the Constitution that says that the American people can't elect not only somebody who's accused of a crime, but somebody who's convicted

of a crime and in prison. Now, you obviously, if a person couldn't perform the functions of the presidency for whatever reason, it would be incumbent on Congress to impeach and remove and disqualify the person. But you know, we're a long way from that. There's nothing that says that he can't be nominated, elected, and served while he's under investigation, indictment, or even I think they would probably if he got

elected and he hadn't been tried yet. I think the courts would probably suspend the trials until after his term was over. But you know, anyone tells you, Lisa that they know what's going to happen here is either lying or delusional because we've never been here before and nobody knows what's going to happen. What is the probability in your mind of them landing a conviction on either the federal charges he's facing, the charges out of New York

or or Fulton, Georgia. I think I don't like the January sixth case, but I think Smith is pretty serious about bringing it. I don't like it because it's you know, he's probably going to charge him if he brings a case with conspiring to obstruct Congress's ratification of Biden's election. The only way I think he can do that is by criminalizing a legal theory, which, even if it's a bone headed legal theory, I think that's a road we

don't want to go down. When I was a prosecutor, if a frivolous eagle theory is now going to be a felony, I could have charged five of them a day. I mean, defense lawyers are very creative with some of the stuff they come up with. So I hope he doesn't go there, but he may go there. The strongest case, least it seems to me, is the documents case, which would be presented as a documents case except for the political inconvenience that it turns out that Biden also is

a serial hoarder of classified documents illegally. So now what you have seen happen, and I think this was pretty predictable. The minute that it became obvious that Biden also hoarded classified documents, the prosecutor, the Justice Department, the Biden administration, and the media Democrat complex has reframed that case from a document retention case to a grand jury obstruction case.

And what they're going to argue is that the difference in the two situations and what justifies prosecuting Trump but not trust prosecuting Biden. Is that Biden cooperated with the authorities, whereas Trump obstructed the grand jury. I don't know if that's going to work as a public relations strategy, but that's their story and they're sticking to it. And I do think he's going to be indicted for obstructing the

grand jury. Well, so, I think you can make the argument that he didn't because there was additional documents in his home that he didn't make them aware of. But I see your point in terms of legally what they would they would try to argue. But Andy, this has been truly fascinating. I have learned so much in this period of time with you. I would absolutely love to

have you back on the show. You do such a great job breaking this all down for people like me who do not have a legal debate but doing show, but doing so, you know, it's good for your mental health that you didn't let them do law school to you, Lisa, So that's good. And look at all these my dad's look at all these crimes you haven't committed. So you know, well, my dad's a lawyer, and I thought about it because I you know, I kind of share his analytical nature,

but this was fascinating. You do such a great job. I've learned so much from you, and I just truly appreciate your time and your expertise in in this So thank you so much. Thank you for having me appreciate it.

So is Andy McCarthy. I'm so glad he came on the show because he does such a good job of I think it's really hard for attorneys and particularly people in the legal field to break things down in layman's terms, and he's able to do that in such a take these complex issues and make it easy for us to understand even without having a legal degree or a legal background. Rather so I appreciate him coming on the show. I appreciate you guys at home for listening every Monday and Thursday,

but you can listen throughout the week. I want to thank John Cassio, my producer, for putting the show together. Until next time,