Morning Wire - Trump’s Legal and Political Jeopardy | Saturday Extra

Episode Date: June 17, 2023

The historic arraignment of a former President of the United States and the current leading Republican presidential candidate took place this week – raising unprecedented political and legal questions. We sit down with former federal prosecutor Andrew McCarthy to address the legal and political implications Get the facts first on Morning Wire.   Omaha Steak: Type code  "WIRE" into the search bar to get ‘Dad’s Favorite Gift Package’ for JUST $99.99. Plus get 8 free steak burgers. http://www.OmahaSteaks.com   Follow us on Twitter: https://twitter.com/MorningWire Learn more about your ad choices. Visit podcastchoices.com/adchoices

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I just love my job. Get tickets now. The Devil Wears Prada 2 in theaters May 1st, directed by David Frankel. The historic arraignment of a former person. President of the United States and current leading Republican presidential candidate took place this week, raising unprecedented political and legal questions. In this episode, we sit down with former federal prosecutor Andrew McCarthy to address the most pressing of those questions. I'm Daily Wire editor-in-chief John Bickley with Georgia Howe.

It's Saturday, June 17th, and this is an extra edition of Morning Wire. Here to discuss the legal and political questions surrounding the Trump federal case as National Review Institute's senior fellow. and former federal prosecutor Andrew McCarthy. Andy, thanks for joining us. Yeah, it's my pleasure. First, let's start with who's presiding over this case. There's been some controversy about the judge handling this. Can you explain to us what the situation there is and what we expect to see? 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 Maralago 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, 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, you know, cases, for example, involving, say, the January 6th defendants ought to be reassigned away from, you know, 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 Cannon, I think is rich. From what we've heard so far

from Trump's team, what do we expect his attorney's approach to this case to be? Well, 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. I do. I do. think that they have some cards to play, particularly if they want to drag this out, I think 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, I was surprised, frankly, that there was much more of a description of them in the indictment than I expected there to be if he brought those charges. Usually

the government says because of national security considerations, we can't even, you know, whisper what any of this stuff is about. They had a fairly detailed description of the general nature of these documents. But the thing is, that invites the defense to make a big deal of these documents and say that 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 gray male 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. They're very time-consuming. So I think if his objective, 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. All right. So you're projecting that this is likely going to stretch beyond the election. Because of the way it's been charged, yes. Now, there's been a lot of debate over the political arguments versus the legal arguments surrounding the case. From a legal perspective, is Trump in trouble? 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 in Trump's favor is, which is that the Hillary Clinton precedent argues against his being

charged. But I think what people will find is that that 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 a case based on selective prosecution, the legal test that's employed is not going to compare Trump to Hillary Clinton. It's going to be to compare Trump to defendants generally charge 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 that 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, I think, the point of the spear of his defense, 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 that it's not a defense if there's somebody else who committed analogous crimes who should have been charged but wasn't. So I just think

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 I think it's spent at this point. What about the precedent here? Does this case, opened the possibility of reviving Hillary Clinton's classified documents case, and could it mean legal trouble for Biden in the future? Yeah, 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 that 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 of 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, it made it basically impossible to bring the case. So that ship is sailed and we'll have to see what effect it has as precedent going forward. You know, obviously if it was applied as ironclad

precedent, Trump wouldn't be being charged. So maybe, you know, I think what people cynically and correctly say is maybe it's just precedent that favors Democrats. Imagine that. But as far as Biden is concern. I guess the answer to that is we're going to see, aren't we? It's interesting that the Biden prosecutor, and he is a Biden prosecutor, I think, you know, the reason that 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 charged the case is that he put the Espionage Act offenses front and center at a time when there is a significant controversy regarding President Biden's illegal retention of classified information, which is an offensive. 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 just to make that case disappear, which I think they'd like to do.

Final question, a pretty open one. Is there anything you think is not being emphasized enough in the national conversation regarding this case. Well, let me put it this way. I've been asked any number of 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? And I think, you know, it seems like every six weeks or so, another iteration of those kinds of questions comes up because Trump has these multiple litigations going. And 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. I mean, having a criminal case against the 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, the relevance of them at the trial. That's all got to be litigated, and they're not easy litigations because it's classified information. So 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, they're 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 going to be indicted more than likely 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 the New York State 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 Brad case, the Manhattan District Attorney's case. that case has been scheduled for trial on March 25th of 2024, which is like in the middle of the primaries two weeks after Super Tuesday. And within all of that, you have to now schedule this federal case. And remember, Smith is a special counsel, which means he gets to write a report. He's also investigating the January 6th stuff in connection with Trump. And I don't think Trump is going to be charged in connection with that, but I do think that this special counsel is going to write a report that's going to be dropped sometime during the 2024 campaign. There's a lot going on here.

Certainly is. Andy, thank you so much for talking with us. That was former federal prosecutor, Andrew McCarthy, senior fellow at National Review. And this has been an extra edition of Morning Wire.