Interview with ex-Federal Prosecutor Andrew McCarthy on Trump’s legal and political risks.

The Historic Arraignment of a Former President: Legal and Political Questions

The historic arraignment of a former president of the United States and the current leading Republican presidential candidate took place last week, raising unprecedented political and legal questions. Daily Wire Editor-in-Chief John Bickley sat down with former Federal Prosecutor Andrew McCarthy for an extra edition of Morning Wire to address the most pressing of those questions.

Bickley:

Here to discuss the legal and political questions surrounding the Trump federal case is National Review Institute senior fellow and former Federal Prosecutor Andrew McCarthy. Andy, thanks for joining us.

McCarthy:

Yeah, it’s my pleasure.

Bickley:

First, let’s start with who is presiding over this case. There’s been some controversy about the judge handling this case.

McCarthy:

I don’t think there should be any controversy about it other than it’s a media curiosity. It’s not at all unusual in ordinary litigation, but Judge Aileen Cannon, who has been randomly assigned the prosecution by the government against former President Trump, was also the judge who presided over his effort right after the Mar-a-Lago search in August of 2022 to get a special master to review the stuff that the government had seized for purposes of determining whether there was attorney-client privilege or executive privilege materials in it. She leaned heavily in his direction and made a determination that there should be a special master. The court of appeals reversed her decision, and that was the end of that. That’s the kind of thing that happens all the time in litigation. Obviously, her performance will be carefully scrutinized by people because she’s a Trump judge. On the other hand, I think Democrats would be offended by the notion that cases, for example, involving the January 6 defendants ought to be reassigned away from Obama judges or Biden judges, even though they’ve tried to make political hay out of that whole event. So I think we should just sit back and wait and watch and see how she performs. I also think it’s ironic under circumstances where the Biden Justice Department and its special counsel went out of its way to try to do this case in the District of Columbia, until they finally realized that that wasn’t practical — and therefore are as guilty of forum shopping as anybody can imagine. For them to be complaining about Judge Canon, I think is rich.

Bickley: From what we have heard so far from Trump’s team, what do we expect his attorneys’ approach to this case will be?

McCarthy: First, we have to find out who they’re going to be. He’s having some trouble. He needs local counsel in Miami, and the last I looked into it, that had not been locked in yet. But I do think that they have some cards to play, particularly if they want to drag this out. If special counsel Smith had really wanted to get this case to trial quickly, he would have charged it lean and mean and stayed with just the obstruction counts. Because he’s gotten into these Espionage Act counts, which I was frankly surprised there was much more of a description of them in the indictment than I expected, if he brought those charges. Usually the government says, because of national security considerations, we can’t even whisper what any of this stuff is about. They had a fairly detailed description of the general nature of these documents. But that invites the defense to make a big deal of these documents and say they need the jury to understand more about what’s in them in order to put the case in context. That raises the possibility of what’s known as the “Graymail situation” where, in a national security case involving classified information, what defendants always push for is more disclosure of the classified information — not because that information necessarily is exculpatory or will help them much, but because they know the government doesn’t want to reveal it. And as a result, it makes it more difficult to prosecute people because if the government fights it and the judge rules the government’s way, that sets up the potential argument that Trump’s due process rights and his ability to conduct his defense have been compromised. So, I expect there’s going to be a lot of litigation about that. It’ll be under what’s known as the Classified Information Procedures Act. Those issues — I had them when I prosecuted terrorism cases – are very time-consuming. So if the prosecution’s objective was to try to get this case moving quickly and done prior to the election, I think that’s going to be very difficult.

Bickley: So, you’re projecting that this is likely going to stretch beyond the election?

McCarthy: Because of the way it’s been charged, yes.

LISTEN: Catch the full interview with Andrew McCarthy on Morning Wire.

Bickley: Well, there’s been a lot of debate over the political arguments versus the legal arguments surrounding this case. From a legal perspective, is Trump in trouble?

McCarthy: Yeah, he’s in big trouble. And I’m glad you make that distinction between the political arguments and the legal arguments, because they kind of meld in terms of what the best argument is in Trump’s favor — which is that the Hillary Clinton precedent argues against his being charged. But I think people will find that the selective prosecution argument works much better as political rhetoric and as a reason for the government to exercise its discretion not to bring charges. Once the prosecutor decides to bring charges anyway, it doesn’t have much legal heft because, to the extent Trump raises a motion to dismiss the case based on selective prosecution, the legal test that’s employed is not going to compare Trump to Hillary Clinton — it’s going to compare Trump to defendants generally charged with Espionage Act violations or obstruction. And he’s simply not going to be able to say that he’s uniquely been singled out because the government actually does prosecute other people for that. In fact, the real travesty is not that Donald Trump is being charged — it’s that Hillary Clinton wasn’t charged. And then the other thing about selective prosecution, which Trump will want to make “the point of the spear” of his defense, is it doesn’t really work well in a jury trial because the court is going to limit the amount of evidence that Trump would be permitted to put in regarding Hillary Clinton. And the jury will be told, at the end of the case, that the only issue for them is whether the government has proved Trump’s guilt beyond a reasonable doubt, and it’s not a defense if there’s somebody else who committed analogous crimes. So the selective prosecution claim will continue to be very effective for Trump as political rhetoric as he makes his campaign, but the legal effectiveness of it is spent at this point.

Bickley: What about the precedent here? Does this case open up the possibility of reviving Hillary Clinton’s classified documents case, and could it mean legal trouble for Biden in the future?

McCarthy: Well, let’s start with Hillary Clinton. That case was dead at the time that the Obama administration exited, and the new Justice Department came in. And what I mean by that is not just that at this point in time, as we sit here in 2023, the statute of limitations has run on the major offenses in that case so they couldn’t be prosecuted. What I’m saying is that the way the Obama Justice Department investigated that case sabotaged the possibility of bringing it successfully. So even by the time you got a Republican administration and a Republican Justice Department in, had they reviewed the case, they would have concluded that they couldn’t prosecute it. Not because she didn’t deserve to be prosecuted, but because the steps that the Obama people had taken — between giving people immunity who shouldn’t have had immunity and a variety of other things they did — made it basically impossible to bring the case. So that ship has sailed. And we’ll have to see what effect it has as precedent going forward. Obviously if it was applied as ironclad precedent, Trump wouldn’t be being charged. As far as Biden is concerned, I guess we’re going to see, aren’t we? It’s interesting, the reason the Biden prosecutor — and he is a Biden prosecutor —  Jack Smith, the special counsel, was brought in was really political, not legal. There was no conflict of interest reason that this case needed a special counsel. The Biden administration is trying to delude the country into thinking that Biden and the Biden Justice Department don’t have any input in the prosecution of Trump. But that’s ridiculous because the special counsel reports to the attorney general, and he exercises the power of the president. So they are involved in it, whether they want to own up to that or not. But the interesting thing about the way he’s approached the case is that he put the Espionage Act offenses front and center. This is at a time when there is a significant controversy regarding president Biden’s illegal retention of classified information, which is an offense in his case that evidently goes back decades to his time in the Senate. So I think what they’ve necessarily done here is really spotlighted Biden’s offenses in a way that invites Trump to hammer away at them every single day on the campaign trail. And it’s going to make it very difficult for the Biden Justice Department to make that case disappear, which I think they’d like to do.

Bickley: Final question — a pretty open one. Is there anything you think is not being emphasized enough in the national conversation regarding this case?

McCarthy: Let me put it this way: I’ve been asked many times, “Do you think that they can get this case to trial before the election, and what would be the impact of this case on the election?” It seems like every six weeks or so, another iteration of those kinds of questions comes up because Trump has these multiple litigations going. It would be hard enough if this was the only thing on his dance card. To imagine how this case gets to trial before next November with all the potential litigation, having a criminal case against a former president, he will have arguments to make, and it’s going to take time to litigate them. As I said before, there’s significant classified information issues, and the admissibility of them and relevance of them have to be litigated at the trial — and they’re not easy litigations because it’s classified information. If you imagine that this was the only case he had, this would be hard to schedule. But in the reality that we’re dealing with, next week or the week after he’s got to be back in federal court to argue whether the New York state case should be brought to the federal court. I think they’re going to lose that, but they’re going to have a big hearing at the end of the month. In August, he’s more than likely going to be indicted by the Fulton County prosecutor in Georgia in connection with the 2020 election. On October 3rd, he’s scheduled to go to trial in a massive civil fraud case brought by New York Attorney General Letitia James. That case could go on for a few weeks, and there’s a lot of information that’s going to come out that’s going to have to be addressed. In December, they’re back in front of the New York judge in the Alvin Bragg case to the Manhattan district attorney’s case. That case has been scheduled for trial on March 25th, 2024, which is in the middle of the primaries, two weeks after Super Tuesday. And within all of that, you have to schedule this federal case. Smith is also investigating the January 6 riots in connection with Trump. I don’t think Trump is going to be charged in connection with that, but I do think that the special counsel was going to write a report that’s going to be dropped sometime during the 2024 campaign. There’s a lot going on here.

Bickley:

There certainly is. Andy, thanks so much for talking with us. That was former Federal Prosecutor Andrew McCarthy, senior fellow at National Review.

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