The Targeting of Trump with Andy McCarthy

it play into this case. We're going to get into all of this with former Chief Assistant US Attorney Andy McCarthy's also a senior fellow at the National Review Institute and a Fox News contributor. Stay tuned for Annie McCarthy. Well, Andy McCarthy, I appreciate you taking the time to come on. You've joined us before, and I feel like, in such a thoughtful manner, really took us through the New York City indictment against Donald Trump. So I appreciate you making the time this time.

October third. That's going to be a major fraud trial that's going to take a number of weeks. And as we just saw with the last civil trial that Trump had with Egene Carroll, it's tough being a defendant in a civil case. There's a lot of disadvantages that litigation wise, that are where you lack the protections you have as a defendant in a criminal case. So I think that could be that could be worse than people are focused on.

We have this new case with Smith, and what I have started to try to remind people is that Smith is a special counsel like Muller was and like so at some point, I don't think he's going to charge Trump with January sixth stuff. But I do think he's going to write a report like Muller did and like Durham did, and they will drop that some you know, it's some advantageous moment for them during the election cycle.

So no, it's a terrible you know, we've had now how many presidential election cycles in a row where we have law enforcement pervasively involved in electoral politics. It's terrible for the country.

going to be. In two ways. I thought number one, that if he really wanted to get to trial quickly, he would have indicted it lean and mean and just done the obstruction stuff, because I think it's the obstruction stuff that their political messaging is that what distinguishes Trump from say Biden, who also illegally retained classified information, is that Biden supposedly cooperated to the utmost with the investigation, while Trump obstructed the investigation and lied to the grand jury.

So I would have expected that that was what he was going to front, and I thought that maybe it would be the only charges he brought. The problem Lisa was bringing the espionage Jack counts from a from a prosecution perspective, as if you're trying to get the trial the case to trial quickly, which he claims he is trying to do. That opens up a lot of litigation issues about what classified information is going to be admitted

at the trial. I was really surprised reading the indictment at how descriptive it was about the thirty one classified documents that they've made the heart of the case. Usually the government takes the position that we can't even whisper or anything about this stuff because it would harm national security for any of it to be public. Here, they were pretty descriptive about the kind of information that was involved, the classification levels that were involved, the duration of time

that Trump is alleged to have retained these things. And I think by doing that, you invite Trump to say that in his defense, he needs to give the jury a more expansive idea of what's in these documents, which is typically what defendants do in these national security classified

information cases. Not so much because the documents necessarily helped them in the sense of being exculpatory, because they know the government doesn't want to reveal the contents of the documents, so it puts the government in a position of blocking the defense from making what they argue is their defense, which creates a big issue on appeal, and also because this all has to be litigated pre trial into something that's called SIPA, which is the Classified Information Procedures Act,

those proceed those litigations proceed at a glacial pace. I had one in a terrorism case in the nineties. At the end of it, I think I read toward the end of our trial, I read like a nine line stipulation to the jury, but it took a year and a half of litigation to get there.

like absolute malice and intent. Whereas with this Donald Trump case, it's like a reasonable person could say that there is some ambiguity in the sense that like a president does have ultimate authority to declassify or classify documents, and so, you know, I think it is reasonable to believe that there could be ambiguity about is he allowed to keep the you know what I mean, like, whereas if you're taking documents out of the Senate, it's like, dude, you're

you know, I mean, you're really trying here, right, And so I think that's where there's a lot of confusion and you know, maybe doubt or a perception of bias.

have to review national security information in a skiff on Capitol Hill and they're not allowed to take it out. So I quite agree with you that if Biden had information from the time he was in the Senate, he had to have willfully taken this, and to me, that undermines a lot of his a lot of the points he gets for being cooperative with the FBI's investigation. I do give him some credit for that. You know, he allowed them to search his homes. I don't think he

did it rapidly enough. I mean, to me, I think that Merrick Garland, you know, basically sat on his hands and let Biden handle this thing, which was irresponsible on Garland's part. But look, he did let the FBI come in and search his places and all that stuff, whereas

with Trump he was a national security official. But you know, to the extent they had arrangements in mar A Lago while he was president to allow him to review you know, I assume they had a skiff down there while he was president so that you know, he could review those documents under those conditions. You know, when he wasn't president anymore. If he didn't have a skiff, he wasn't supposed to have that stuff down there, and he would have known that.

But so you know, there's there's obviously problems. But you're right that as president, he would have had the power to look at this stuff, or the authority look at this stuff in locations other than a skiff in the

White House. And you know, we're seeing the same thing with Pence, right he ended up with documents in his House because he was allowed to review stuff there too, and he said that it was typical that after he reviewed it, he would give it to his military attache who brought it and they put it in the burn bag or do whatever they do with it. And at least on a few occasions it sounds like that didn't happen.

But you could see, as you're saying, you know, how there could be something inadvertent that happened in that kind of situation.

little confusing, you know. I read there as an op ed in the Wall Street Journal by Michael Bakesha I think is his name. I'm probably butchering his last name who lost the Clinton socktorre case, and he wrote that the Presidential Records Act allows the president to decide what records to return and what records to keep at the end of a presidency, and the National Archives and Records Administration can't do anything about it. What are your thoughts

about that? You know, what are your thoughts about the Presidential Records Act? And you know, using it as you know, hey, he didn't do anything wrong here.

saying agency records are not presidential records. What's an issue in President Trump's case is agency records specifically are national security agencies, and they're classified reporting about various threats to the United States and military situations and the like. They're not covered by the Presidential Records Act. That act is basically what it covers is things that are generated by the president and his staff or given to him for

purposes of carrying out his day to day activities. And what he's allowed to keep as opposed to archive is things that are in the nature of say diaries or journals. And what was at stake in what the op ed today in the Wall Street Journal is about were tape recordings that Clinton when he was president, created in conjunction with a historian who he was working with to compile what they helped would be a published history of the

Clinton presidency. So these were documents that were created by Clinton, and they're more in the nature of presidential records than agency reports, which is what it's set at stake in Trump's case. So I really don't think it's obviously caused a lot of confusion, and it's going to give the the Trump defenders some things to play with, but you know, ultimately an don't think they're going to get very far with it.

pass Petraeus Deutsch. You can go down the list of people who either didn't get prosecuted at all or got to slap on the wrist over stuff that was arguably at least as serious as what Trump did. The problem with it as a legal strategy is if Trump were to argue selective prosecution to try to get his case knocked out, the legal test is not going to compare Trump to Clinton. It's not like a one on one thing.

It will be it will be to compare Trump to everyone else who gets prosecuted under the Espiona jacked or to everyone else who gets prosecuted on obstruction. And he's just not going to be able to argue that no

one gets prosecuted under those provisions. Obstruction cases are very common, and when we're dealing with people who are not you know, high level celebrity politicians like Trump and Clinton and you know, Petraeus and Pence and Biden and the rest of them, if you're dealing with just like the normal military officer, intelligence officer, defense contractor, those people get prosecuted when they when they possess an unlawfully retain classified information that's a

lot less serious than you know, a lot of the stuff we're talking about in these high level cases, and it's totally not fair to them either. You know. On the one hand, I think Trump is right to say, like how come Hillary gets a pass and I don't.

But you know, if you're a military guy who's who's like doing a two year sentence for keeping some stuff that you shouldn't have kept in your house, you know, you've got a pretty good argument that you know, it's likely that Trump may end up being treated better than you are, you know.

you know, the timeline of what happened here. The National Archives pleaded with Trump for months to return his stuff, and they didn't get the Justice Department involved until almost a year after they started asking Trump to give his stuff back, when he returned grudgingly fifteen of the boxes, which he only did, by the way, because they said that.

The National Archives said, you know, look, if you're not going to give us our stuff back, we're going to have to go to the Congressional Committee, the oversight committee that deals with this kind of stuff, which was controlled by a you know, a portisan Democrat, of course. So Trump was angry about that, but he realized that, you know, he didn't want that mess. So what they did was they gave fifteen boxes, which I think, in the greatest scheme of things, is probably less than half of what

he had down at Mar A Lago. And the only reason the Justice Department got involved is when they went through those boxes, they found I think it was like one hundred and eighty four or something classified document. Some

of them were highly classified. So at that point the Inspector General of the National Archives referred it to the Justice Department, and even they didn't want to touch it because Biden understood the implications of you know, taking enforcement action against a guy he was going to be running against in the election, or at least it was a

very high probability of it. So the FBI and the Justice Department didthered for about three months before they did anything, And there were messages that were sent to Trump basically saying, you know, let's just give us the stuff back and then we can call it a day, when he wouldn't do it. They didn't leap to like, you know, the harshest,

most intrusive measure they could have done. They gave him a grand jury subpoena, which meant that he could go through his own stuff and give them back what they were asking for. And at that point they didn't ask for every single government document he had. They asked for the classified documents, and even then when they asked him for that, he didn't. You know, they realized pretty quickly that what he gave them, which was thirty eight documents, was not everything that he had left, and that was

why ultimately they did the search warrant. Now, I think, interestingly, the FBI didn't want to do the search warrant. You know, there's a lot of criticism, which a lot of it's very valid against the FBI, but I think this, I think the search warrant was more driven by the Biden Justice Department than the FBI. What the FBI wanted to do was ask Trump to consent to search tomorrow Lago

to search his home, rather than get a warrant. And if they had done that, I don't know if Trump would have agreed to this, but at least you would have had a situation where, you know, Trump could have been present, he could have had his lawyers present, they could have accompanied the Bureau and it would have been done by agreement, and it probably could have been done

quietly and without fan fear. The Justice Department didn't want to do that, and it's hard to I'm like a major critic of the Biden Justice Department, but it's hard to criticize them under circumstances where you know, you have one government official after another for over eighteen months who's asking Trump please just give us our stuff back, and he wouldn't do it. Point you know, they don't like them to begin with, but I think their patients was run out.

was a conservative lawyer in New York. All my best friends in the office were Democrats, you know, and it wasn't a big deal because the job was more you know, clinical than political. And I found that most of the time, you know, you can get a crazy jury here or there, but for the most part, juries are pretty good at listening to what the court tells them and you know, applying the law that the judge instructs them on to

the only the facts that they learn in court. Judges in federal court in particular, do a very good job of vetting a jury and visiting on them the obligation to decide the case based solely on the law and the facts and not extraneous concerns. They do a good job of weeding out people who are so political they don't belong on a case like that. So I have

confidence because I've seen the system work. I have confidence that the system will work and that President Trump will get a fair trial, and I hope it'll be decided based on, you know, whatever the facts are, rather than the politics. But I feel like we're talking a little bit of a fantasy or a fiction because the way I see it, I don't see how this case gets to trial before the election, and depending on how the election comes out, I don't know, it may never get

to trial. I mean if Trump obviously, if Trump were the if the Republicans win the election, forget about you know, whether it's Trump, I don't think this case would ever go forward. I think that, you know, there's enough anger on the Republican side over the two tiers of justice. I don't think people want to defend Trump's actions, but they do want to defend the principle that everybody should

be treated the same. So I think it will be a thing for whoever the Republican nominee is, whether it's Trump or somebody else, that if that case hasn't been disposed of before the election, the Justice Department will drop it in the next administration. And whether the Democrats are actually going to pursue it, I guess they will. You know, if the Democrats win the election, I suppose then it

could go to trial. But I just don't see how how it gets to trial because I think these classified information issues are going to be so hard to work through. Trump's got to get lawyers who are cleared for national security information. That takes time. There's a million things that could be appealed in this case. In the normal criminal case, you know, the judge decides the issues, and then you have a trial, and then there's a conviction, and only

then do you get to appeal. But because of Trump's status, and because of a number of the complicated issues that are going to arise because of his status, and because we're dealing with classified information, there could be appeals before the trial, which would delay things. And then I don't mean to go on and on, but the other thing I would just say about it is if this were the only thing on Trump's dance card, I think it would be hard, if not impossible, to get this case

to trial before the next election. But it's not the only thing. He's going to have, like four or five other cases going.

mishandling of classified documents. Is that what this is about, is this the Department of Justice in the FBI trying to create a distraction from what their guy is facing, Joe Biden.

potential seriousness of the charges. It was that the prosecutors, and this was two months or three months before Smith was named as a Special counsel. This was the Biden Justice Department. But they were doing all the things that prosecutors do when they're very serious about building a case, including giving people immunity, which the Justice Department only does that when they're trying to move up the chain and make a case against somebody who's bigger than the person

they're giving immunity to. So I wouldn't say that they decided to prosecute this case because of the need to have a distraction from the Biden bribery stuff, because at the time it looked to me like they were pretty certainly trying to make a case. They wouldn't have known about that the bribery thing would be a scandal at this point. But I'm sure they're going to, you know, given that the table is set the way it's set, obviously they're going to use what they can use to their advantage.

scandal we have going now, the Biden, the Biden bribery thing. Actually, you know, obviously you ought to be investigated to the ground.

And what's going to happen with Trump is going to happen with Trump, right, These things are going to play out, These cases are going to play out, But it's really dangerous for the country to have what I think we have, which is a lot of evidence that the FBI worked with Congressional Democrats in order to discredit the financial information that Chuck Grassley and Ron Johnson and the Senate were compiling with respect to Biden, the Biden's getting millions of

dollars from corrupt and anti American regimes. We've heard a lot about, like the letter of the fifty one former intelligence officials who discredited or tried to discredit the New

York Post's reporting. What I don't think we've paid enough attention to is that those fifty one officials were basically working off a template that the FBI had already developed in conjunction with Congressional Democrats in trying to discredit what Johnson and Grassley were doing on the on the financial investigation, and I think the FBI systematically went to the social media companies and in a nod in a wing kind of way, told them that if there were derogatory information

to come out about the Bidens, the chances were that that was a reflection of Russia once again trying to interfere in our election. So I think the FBI worked very hard to defeat Trump and to get Biden elected.

sober analysis. I do really believe that he is looking at them as objectively as possible, and that's really what I wanted to accomplish with this episode, of just getting a real look at what's going on, what we need to know and where this is going.