Morning Wire - Analyzing the Latest Trump Indictment: Politics Masquerading as Law | Sunday Extra

Episode Date: August 6, 2023

Former prosecutor Andy McCarthy breaks down the merits and flaws of Jack Smith’s latest indictment of former President Trump. Get the facts first on Morning Wire.   Learn more about your ad choices. Visit podcastchoices.com/adchoices

The third indictment to former President Donald Trump, this time for his actions related to the 2020 election, has sparked celebration among Democrats and sharp criticism from Republicans. In this episode, we talk with former federal prosecutor Andy McCarthy about the legal questions at the heart of the Trump J6 indictment. I'm Daily Wire, editor-in-chief John Bickley, with Georgia Howe. It's Sunday, August 6th, and this is an extra edition of Morning Wire. joining us now to discuss the legal questions surrounding special counsel Jack Smith's latest indictment of Donald Trump is former federal prosecutor Andy McCarthy. Andy, thank you so much for joining us. So first, I'd like to read from your recent analysis on the indictment. You wrote, quote, the latest indictment of Donald Trump is politics masquerading as law, masquerading as politics. Can you unpack that statement for us?

Well, yeah, as far as politics masquerading as law, the indictment arises mainly. out of the fact that the political system failed to hold Donald Trump accountable the way the Constitution intends executive abuse of power to be addressed, which is by impeachment. And the criminal justice system is an inapt substitute for that, but having failed to impeach him, they are now trying to do it by other means, and the means they've chosen is the criminal justice system. But it's really just trying to attain the same political objective. they were shooting for in the first place. And the reason I say there's yet another layer of masquerade here is that the timing of all this and the way the indictment is structured demonstrates

that what they really want to accomplish is to try to push the case to trial and then get a bunch of evidence mainly about the capital riot, even though it's not charged as a crime in the indictment. They want to get that in a public trial in the stretch run of the campaign so that they can have January 6th imagery in the electorate's mind as it goes to the polls. So that's a political objective as well. I don't know that they really care whether they get Trump convicted or not because given the weakness of the charges they actually brought, that may be uphill even with the District of Columbia jury. President Trump has called this indictment election interference that seems to align with some of your analysis. Will Trump's legal team make that election interference?

part of their legal argument. Yeah, they absolutely are. And I think while it's effective rhetoric, I also think legally they have some things to play with. I mean, first of all, as I just mentioned, there's a section at the end of this 45-page indictment that deals with alleged exploitation by Trump of the capital riot in the crime that is being pled at that point, which is fraud on the United States. And he goes on in some detail, as Smith demagogically did in his remarks after the indictment was filed yesterday, talking about the Capitol riot and the violence of the Capitol riot and the heroism of the law enforcement people who were assaulted in the Capitol riot. The problem, of course, is Trump is in charge with the Capitol riot, and there isn't a shred of evidence in the indictment

that he either intended the Capitol riot to happen or orchestrated it in any way, nor could conceivably there have been such evidence because the Justice Department has charged about a thousand people in connection with the Capitol riot. They have never alleged that Trump was complicit in it. They've never charged him with being or alleged that he's an unindicted co-conspirator. And in fact, to the extent that people they have charged in violent acts have tried to shift the blame for their behavior to Trump, the Justice Department prosecutors have fought that and tried in many instances to get the courts either to disallow that or limit that defense.

So they've taken, because the evidence compels them to take it, they've taken a consistent position since the Capitol riot that while Trump may be morally and politically culpable, there's no evidence that would make it an actionable criminal offense against him. yet, clearly what Smith is doing is he's inserted this little piece of narrative into an indictment that otherwise has nothing to do with violence in a way that plants the seed to try to persuade the district judge who will hear the case to allow that evidence into the trial. And then, when I say that evidence, I'm talking about the capital riot. And then what he's also trying to do is push the case to trial so that it would be

the calendar sometime in the weeks run up to the election. He's already got a trial scheduled for May. So presumably this would be sometime pushed into like August or beyond, which is when people start paying attention to the voting. So I think what Trump is going to say is twofold. Number one, this indictment is something like an incitement to conviction, if I can borrow the rhetoric from the impeachment, because what Smith is trying to do, given the weakness of the charges he did bring, is induce a jury to convict by firing them up over the Capitol riot. And in addition, he wants to do that not only in the run-up to the election, but under circumstances where Smith has already indicted Trump in connection with the Moralago documents case and is trying

to push that to trial. So to the extent he tries to push this to trial, I think the Trump lawyer is going to argue, and it'll be a pretty compelling argument, that his due process rights to mount an effective defense are being intentionally and tactically undermined by the prosecutor. If I were defending Trump, I would argue that there's no reason on God's Green Earth that this case should be scheduled for trial prior to the 2024 election, because it doesn't in any way prejudiced the case of Jack Smith, the prosecutor, to try this case after the election rather than before the election. The government's evidence will be exactly the same. Of course, Smith would go crazy and fight like hell to try to get the case done before the election because, number one,

this is the whole purpose of bringing the case in order to get this evidence in front of the electorate in the run up to the election. And number two, I guess there'll be some concern that if a Republican were to win the 2024 election, particularly if it were Trump, then the Justice Department would simply drop his case. So he's going to fight to try to get the case to trial. But if you're Smith, if you really wanted to get this case to trial quickly, what he should have done was indict this case before the Moralago case. Now he's in the position where when Trump says, this guy is tactically trying to undermine my due process rights, Trump's got a lot to play with there. Now the indictment centers on Trump allegedly knowingly spreading and acting on false claims about the 2020 election

results, the claim that widespread fraud influenced the results. How much does the First Amendment play into Trump's argument? It plays a great deal into it because let's put aside the monumental task that Smith would have in terms of proving that Trump knew what he was saying was false, which I think is going to be a tough row for him to hoe, to say the least. Most of this indictment, I'd say a good 90% of it, is politically protected speech. And the fact of the matter is, when you're talking about core First Amendment protection, which is what political speech is in a free republic, you're allowed to engage in aggressive speech, in obnoxious speech, and even in false speech.

What you can't do is inside violence. And he's not charged with that, although, as we just discussed, Smith is going to want to make that suggestion. So really what this is is a criminalization of the electoral process or the campaign process. I would go beyond that and say it's also a criminalization of a frivolous legal theory, this idea that the vice president had the power to discount electoral votes. So it's got that overlay to it as well. But the First Amendment argument, I think, is going to be a very powerful argument here. How much does intent matter?

And does the special counsel offer clear evidence that Trump did in fact know that the results were not fraudulent? Does it even matter if he did? Well, it's an interesting question because what you run into is this idea of objectively what was his intent and subjectively what was his intent. And what I mean by that is the government's going to have a lot of evidence that people who were in a position to know were telling Trump that there was no material fraud that would have been of a quantum. great enough to reverse the result of the election. Trump is going to show that he had a lot of other information that he chose to believe that indicated that there was fraud and there was reason to, for at least in some states, to revisit their count. Now, what he'll say is he always believed that the election was stolen by fraud and he's

not only been adamant about it, it's hard to get a word in edgewise when he starts to talk about it. And I think it's going to be difficult for Smith to prove beyond a reasonable doubt that Trump actually believed everything that he was saying was false. But if I were the Trump defense, before you even get to that question of Trump's intent, the government has to have filed charges that state crimes that are legally cognizable. And I think that Smith has real problems on that count. And I think there's on each one of the counties charged, I think the Supreme Court would have a lot of difficulty with the charge, completely separate and apart from any consideration of Trump's intent. Speaking of those specific charges, there's technically four, and you've expressed skepticism that they actually hold up legally. Can you walk us through these charges and their potential legal problems?

Yeah, we can talk about them in three buckets because one of the charges obstruction, all you have there is that he's, charge both what's known as a substantive law obstruction, which means they really did obstruct and also a conspiracy to obstruct. So we can talk about that as one. So the three things are conspiracy to defraud the United States, obstruction and the civil rights violation. The problem we got with the defrauding the United States is that it was only in May that the Supreme Court in two cases that involved cronies of former Governor Andrew Cuomo, where they throughout convictions that were related to alleged political corruption. The Supreme Court once again reminded federal prosecutors that they're not at liberty to make up

crimes that Congress hasn't codified and pointedly said that fraud in the United States in federal law is what it was originally understood to be when the first fraud statute was enacted, I think, in about 1870, and that is a scheme to deceive somebody or swindle a victim out of money or tangible property. What prosecutors in some lower courts have tried to do with fraud is stretch it so that it covers any deceptive scheme that would undermine the government in some way. And what the court has reminded everyone is, no, that's not what it is. It's a scheme to steal money or property from someone, which this post-2020 election case clearly is not. So I don't think he's going to be able to make that fly, and that seems to be the main

charge in the case. The same problem with the vagueness of the concept of fraud also plagues the obstruction count, because everyone is allowed to try to influence Congress. Presidents, of course, are allowed to try to influence Congress, where it becomes criminal is if you corruptly influence or obstruct Congress. And corrupt is another word like fraud that is ambiguous and that prosecutors try to stretch in order to criminalize things that Congress arguably did not have in mind when they enacted these statutes. So as a pushback, what courts have said is to bring something within the ambit of corruption. You have to have conduct that is

obviously illegal. And what some courts have pointed to is, like, for example, witness intimidation or tampering with documents that are going to be presented in a legal proceeding. But relying on a cockamamie legal argument has never been a crime in the United States. And I have to say, when I was a prosecutor, if a frivolous legal theory was a felony, I could have indicted five of them a day. The idea in our system has always been that we can address frivolous legal theories in the legal system without having to criminalize them. And if you undertake to criminalize them, it's really dangerous because not every creative legal theory is a frivolous one. And every now and then something that somebody argues that seems fringy actually turns out to

have some merit to it. So I think this whole idea of trying to criminalize somebody's legal argument, which is essentially what this indictment does in trying to criminalize John Eastman's, shall we say, creative legal theory that the vice president had the power to discount electoral votes. I just think policy-wise, it's potentially disastrous, and in this case, it's not very convincing. And then I guess the last thing you've asked me about is the civil rights count, and I think that's just absurd. What Smith is relying on is a post-Civil War statute that was designed to target the Ku Klux Klan's violent intention and forcible attacks against blacks, mainly in the South, when they tried to exercise their right to vote, which one progressive Supreme Court decision

from the 60s applied to a ballot stuffing scheme, even though that wasn't what it was intended to apply to either. And I imagine if the Supreme Court looked at this, they would probably we say that, look, we're not going to disturb Justice Thurgood Marshall's precedent on ballot stuffing, but this is not a violent case, and it's not even a ballot stuffing case. So I just think the three different varieties of crime that we're dealing with in the indictment are really infirm, and I would think that wholly apart from whether Smith will be able to prove Trump's intent or not. Trump, for his part, has been very adamant that he will not stop running even if convicted. What does the law say? Can we have a convicted candidate running for president

and even winning the presidency? Yeah, the constitutional qualifications to seek and be elected president is that one has to be 35 years of age, I think 14 years resident in the United States and a natural born citizen. That's it. So there's nothing in the Constitution that says that somebody who is either facing indictment or indeed is in prison can't seek the president. The as long as the other qualifications are met. Now, you know, obviously the system is designed so that the Congress has ultimate power over both presidents who abuse their power, that would be the impeachment clause, and presidents who are unfit to serve, which would be the 25th Amendment. When I'm talking about unfitness in that sense, I'm not talking about unfitness based on misbehavior.

I'm talking about unfitness because you can't meet the duties of the office. The 25th Amendment has always been thought to apply to like the Woodrow Wilson situation where, you know, the president has a series of strokes and can't perform the duties of the office. And it's a mechanism to address that situation. My recollection, if I'm, and I hope I'm not wrong about this, but I think a lot of this also had to do with the aftermath of the Kennedy assassination, because there was a, you know, there's a very real possibility. Obviously, President Kennedy perished pretty quickly after he was shot, but it was always possible that he could have lingered for a long time, and you would have had this situation of what do you do where the

president can't function. I would argue that, or I would expect at least, that if you had a president, I mean, this just seems so outerworldly to even speculate about this, right? But if you had a president who was either convicted or incarcerated, for taking office and it was now time to take office. I assume that the 25th Amendment could be invoked or Congress could impeach. But there isn't anything in the qualifications for the presidency that would strike such a person as not being able to seek office. Well, we're deeper into uncharted territory here with lots of legal questions still to be answered. Andy, thank you so much for joining us. Oh, it's my pleasure. Have a good one. That was former federal prosecutor, Andy McCarthy,

and this has been an extra edition of Morningwire.