Morning Wire - Analyzing Trump’s Trials & Potential Convictions | Sunday Extra

Episode Date: December 10, 2023

The issue of immunity and free speech in Trump's 2020 election interference case. Former federal prosecutor Andy McCarthy sheds light on the strategy of delay and the jeopardy ahead for the former president in the DC courtrooms. Get the facts first on Morning Wire. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Former President Trump's lawyers have been furiously filing appeals in his mounting legal cases, both civil and criminal. A pair of recent rulings out of D.C. are just the latest in a series of consequential legal hurdles for the GOP frontrunner. In this episode, we talk with a former federal prosecutor about Trump's legal setbacks and what to expect in terms of trials and potential convictions in 2024. I'm Daily Wire, editor-in-chief John Bickley, with Georgia Howe. It's Sunday, December 10th, and this is an Extra edition of Morning Wire. Joining us now to discuss Trump's legal cases as former federal prosecutor Andy McCarthy. Andy, thanks for joining us. Yeah, sure.

So late Friday, a judge ruled against former President Trump's claim of presidential immunity in his 2020 election interference case. Where does that leave his defense? Well, it's the most important issue that he raises because his objective is delay. And while there is a preference in federal law, to not allow appeals prior to trial. In most federal cases, you try the whole case in the lower court, and then the whole case goes up on appeal to the circuit appellate court,

and then finally to the Supreme Court. But there are some issues which go to whether it's proper to put a person on trial in the first place that the law allows pre-trial appeals for. And the claim that was ruled on Friday by Judge Tanya Chutkin was such a claim. Trump was advancing an immunity claim saying that because the activities that are the focus of his election interference trial were, as he argues, within the ambit of his presidential responsibilities, he has immunity from prosecution for those. Judge Chutkin

rejected that claim. I think it was to be expected that she would. The Supreme Court is never ruled on the question of whether a former president has immunity from prosecution, criminal prosecution, for official actions in connection with the presidency. But it did rule in a case called Nixon versus Fitzgerald that a president does have immunity from civil suit for his official actions. But that was a very deeply divided case. And the court strongly suggested that, had the issue been criminal liability rather than civil liability, the court would have come out

differently. So I think Judge Chutkin applied that reasoning to this case, which does raise the question that wasn't before the court, the question of criminal liability. And she said he does not have immunity from prosecution. Now, Judge Chutkin also rejected Trump's claim that the indictment violates his First Amendment rights to free speech, which he used to question the validity of the election. Did you think that was a valid ruling? Yeah, I thought so, and I happened to have some familiarity with this issue. In fact, she relied pretty heavily on the Second Circuit's appellate opinion in New York arising out of my prosecution in the 90s against the blind shake and other jihadists who raised this question of whether their prosecution for seditious conspiracy was in effect a criminalization of speech. And the doctrine of law that is triggered by this is the idea that you are allowed as a prosecutor to use speech as proof of crimes. As far as the law is concerned, that doesn't criminalize the speech itself because you're not saying

that the words that were used, the utterance of them is a crime. You're using the words that were uttered as evidence of other crimes. In this case, Trump is charged with fraud, obstruction and a civil rights violation. and what Judge Chutkin ruled was that the government is not saying that his act of speaking, for example, on the ellipse was itself a crime, but it is evidence of the crimes that are charged in the case. Got it. Now, also on Friday, the U.S. Court of Appeals for the D.C. Circuit ruled against Trump

in another lawsuit that accuses him of allegedly inciting the J6 riots. This one was brought by Democratic lawmakers and police officers. where do these decisions leave Trump now? Well, the one in the civil case is an important ruling, but it's not a final ruling, and the court was very equivocal. This is a three-judge panel of the D.C. Circuit Court of Appeals. What they essentially said was that at this premature stage of the proceedings where we haven't had a trial, we haven't even had a motion to dismiss the case yet, they can't say definitively whether the actions that Trump is a matter. accused of whether they should be considered official acts of the presidency or private acts that are outside the ambit of his executive responsibilities. That's the key question there. If they are

his official acts, he has immunity from civil lawsuits. If they are unofficial acts outside the presidential duties, then he can be sued for them. And what the court is trying to grapple with is this kind of fuzzy area where presidents take actions that on the one hand they seem like they're completely political, which are deemed to be private acts and outside the responsibilities of the presidency. But they're also tinged, maybe more than tinged, with official action of the presidency as well. So what the court basically said is here's a framework for trying to figure out or trying to distinguish the official actions from the unofficial actions, but we'll have to see how the evidence shakes out before we can make a definitive ruling about which is which.

Do you see Trump being convicted in these D.C. courtrooms? I think it's a very high likelihood that he will be convicted. And I say that as somebody who does not think it's a valid case. I think the election interference case has a lot of legal problems. I don't believe. I don't believe. for example, the fraud on the government counts. I don't believe that they are applicable to the kind of behavior Trump is accused of. In federal law, fraud really has to be financial in nature. And the government's theory applying this to the context of federal elections, I think, is one the Supreme Court rejected in around 1917 and has never revisited that ruling. I think the obstruction counts are probably the strongest ones against Trump.

what exactly amounts to corrupt obstruction under the statute that Jack Smith, the prosecutor, has charged, is a vexing question. And the D.C. Circuit has had a lot of trouble with it. It's not clear to me that what Trump did here, which was basically rely on bogus legal theories in order to argue that state and federal officials shouldn't count electoral votes. I'm not saying that was a good thing to do, but I don't think it's a cognizable felony obstruction. And finally, the civil rights statute that Smith has charged is basically a 19th century statute that was designed to attack the Ku Klux Klan for preventing people from voting

through physical intimidation. I don't think the current Supreme Court would indulge its being applied to what Trump is accused of doing, which is arguing that because of various changes, in voting rules that were done in the states in the lead up to the 2020 election, hundreds of thousands of those votes should, maybe millions of those votes should have been invalidated. I just don't think that's a proper application of the civil rights laws. So I think the case has significant legal problems, but jury trials don't tend to turn on that.

So if Judge Chuckin disagrees with me and rules in Smith's favor, as I expect she will, the jury is not going to be aware of these legal complexities which call these charges into question. What they're going to hear is a lot of unsavory evidence of bad stuff that Trump did. And in Washington, D.C., which is not a very friendly place for Trump to be on trial, and with Chuck, who's an Obama appointee, whose disdain for Trump is barely concealed, I think you have to say that there's a very good chance that he'll get convicted on at least one of these charges. Last week we covered special counsel Jack Smith's request for info on all the people who interacted

with former President Trump's Twitter account. What did you make of this really sweeping request and the fact that a judge actually granted it? I think that unfortunately what you have seen a lot from Washington, which is why the Justice Department plants its leg in the District of Columbia when it has investigations that could be run from various different jurisdictions. They're in Washington because the court is very friendly to the Justice Department there and pretty much gives them what they want. To me, that was a broad, abusive subpoena

that a more responsible court would have forced Smith to narrow, forced Smith to come in and explain what the relevance was and basically tailor down what he was asking for. But the reason that the government sets up shop in Washington, D.C., For example, Trump is indicted in Florida in this documents case, which was also brought by Jack Smith. And even though everything of importance that happened in that case happened in Florida, the Justice Department decided to investigate it from Washington. And the reason they did that is when, you know, complicated stuff comes up or disputes arise.

They like having that court to go to to resolve them. So I think that Smith is a very aggressive prosecutor. And that court has been very supportive of investigations involving Donald Trump in January 6th. And pretty much if the Justice Department asks for it, they get it. One last question here. What do you foresee happening this next year in 2024 with these major Trump cases? Do you see convictions coming this year? Is there jail time coming?

What should we expect? Yeah. So the reason that the immunity issue in the D.C. Election interference case is so important. is Trump's strategy is delay. What he's trying to do is get an issue that he can, even if he loses with Judge Chutkin, that gives him a chance to get up to the Court of Appeals, where she could lose control over the schedule. The trial is now scheduled for March 4th, but if the case gets taken by the Supreme Court, the chance of it being tried prior to the 2024 election to me is remote.

Judge Chutkin knows that Trump wants to delay this. That's the reason that she put the immune issue on a fast track, even though the other pretrial motions are still being submitted and argued at this point, she forced them to litigate the one that could be appealed on a very fast track so she could issue a ruling on December 1st. And this way, if Trump appeals to the D.C. Circuit, they will probably side with Judge Chutkin and they'll do it rapidly, which will keep the March 4th trial date on track. And then I don't think the Supreme Court's going to take the case at this stage. I think they'll say, we'll look at the whole case if there's a conviction at the end and there's an appeal. So I think they're going to duck the case because I don't think they want to

be thrust into the politics of the 2024 election. So I think there's a very good chance that this election interference case will go to trial. And even though legally, I don't think it's as strong a case as the Florida documents case, the Mar-a-Lago case, I don't think the Mar-a-Lago documents case because of the complexities of classified information issues, I don't think that's going to get to trial prior to the election. And even though that case is a stronger case than the January 6th case, the Florida case is in front of a friendly jury pool to Trump and the presiding judge is a Trump appointee.

I think he's got a more sympathetic area to work with there and probably has a better chance of beating that case than the case in Washington where the jury pool is hostile to him and the judge appears to be hostile to him. So I think if the case goes on schedule on March 4th, it's supposed to take two to three months, there's a good chance that he will be convicted on at least one of these four felony counts. And there's a very good chance that the sentencing guidelines, because these are serious felony charges,

would call for a sentence of imprisonment. And then you get into the whole matter of when does Trump get sentenced, And if he does get sentenced and it's a jail sentence, does the judge grant him bail pending appeal? The preference in federal law is against giving people who have been sentenced to prison sentences, bail pending appeal. So it could be a very rocky few months, but I think we can say with some confidence that Trump, at a minimum, is going to be spending two to three months between March and May in a courtroom every single day in a felony trial. Well, it's going to be a wild ride. Yeah, I'm afraid so. Andy, thank you so much for joining us.

Appreciate your time as always. Thanks a lot. That was former federal prosecutor, Andy McCarthy, and this has been an extra edition of Morning Wire.