The Dispatch Podcast - Appointing Toadies | Interview: Andy McCarthy

Episode Date: November 18, 2024

National Review’s Andy McCarthy joins Jamie to defend his vote for Trump, discuss what we considers to be the weaponization of the Justice Department, and debate the implications of Rep. Matt Gaetz���s nomination as attorney general. Buckle in folks, we’re just getting started. The Agenda: —A binary choice —Will Gaetz be confirmed? —Investigating January 6 —Pete Hegseth and the large bureaucracy of the Pentagon —The president’s power to pardon raises legal questions —Rudy Giuliani’s decline Show Notes: —Andy McCarthy's previous appearance on The Remnant The Dispatch Podcast is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including members-only newsletters, bonus podcast episodes, and weekly livestreams—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Conditions apply, visit your local Volvo retailer or go to explorevolvo.com. Welcome to the Dispatch Podcast. I'm Jamie Weinstein. My guest today is Andrew C. McCarthy, Andy McCarthy. He is a senior fellow at the National Review Institute, a National Review contributing editor, the author of several books. And he also served formally as in an assistant U.S. attorney for the Southern District of New York. He is a very astute legal commentator, among other things. And we get into some of the issues that might arise in Trump's second term. What is the role of the DOJ? What he thinks of the nomination of Matt Gates and much more. I think you're going to find this a very interesting episode, particularly the story at the end about Roy Cohn. But the whole episode, I think, will be fascinating for you to listen to. So without further ado, let's get right to it. Here is Mr. Andy McCarthy. Andy McCarthy, welcome to the Dispatch podcast.

Jamie, great to be with you. One thing I'm happy to have you on, Andy, I like about you, is you never know exactly, especially with legal issues, where you're going to come down on. You don't know when something happens with Trump. You're either going to be an indictment of what Trump is doing or what they're doing against him. And one day, you know, even in your columns, and I listened to the Hugh Hewitt interview you did before, I couldn't tell. who you're going to cast your ballot for. What did you end up doing on election day? Do you end up casting your ballot for Trump or not?

So I did vote for Trump and I wrote, I think, Jamie, it was like the weekend before because I kind of felt like I didn't mean to be cagey about it. So I explained to people along the way that I was having terrible trouble with it. And I really honestly didn't know how I would come out in the end because, you know, I I said that I thought that Trump should have been impeached, removed, and disqualified after, I didn't like the way that the 2020 impeachment was structured. You know, the capital riot impeachment, I thought they didn't do a very good job of writing the article of impeachment. But in the end, I said I would have voted for him to be convicted. So it's a little hard to rationalize voting for someone you think and have said.

said, should be disqualified and not be able even to seek the office. Where I came out was, while I respect people who go the other way, I think it's a binary choice, and I think that's probably a vestige of my background as a lawyer and a prosecutor, because there's a lot of times that, you know, we put 12 people in the box. The government has a really crappy case, and the defendant is really guilty. And, you know, they don't get a third choice, the jurors. They get asked to find guilty or not guilty. So, you know, sometimes I think you have to make a tough choice, and this was a tough choice.

My ultimate rationalization was that I think the guardrails of the system, the Constitution in particular, but the actors in the system as well, work effectively. against the excesses of a Republican president in the way that they don't with respect to progressive Democrats. So I was more fearful of things that Harris would do because I thought she'd get away with them rather than I'm not really all that concern about the stuff Trump would do. I imagine we'll get into some of that and that'll give me a way to explain why I think that. But that was where I came out for better or worse. Well, I do soon want to get to your column on Gates, which I think may be testing, perhaps, what you were not feel for us. And I want to get to that. But just for myself and for the listeners, what is the proper role of the DOJ and a president? What is the proper relationship? How should we want the DOJ, the attorney general, and the president to interact? Yeah, this is a really interesting dynamic. I think it's different with respect to DOJ than it is with any other federal agency because it's undeniably the case that the Justice Department is in the executive branch. It is subordinate to the president. And the president is, to my mind, I believe the unitary theory of the,

of executive power. I think all of the executive power comes from the president, including the prosecutorial power. And I think the president is supposed to give the vision of how justice department prosecutions and other exercises of justice department authority, how they're supposed to be prioritized. So, for example, when I was, I was an assistant U.S. attorney in New York for nearly 20 years. During some of that time, you know, during the Reagan years into the Bush years, the priority was largely street crime, especially drug crime, because we had an explosion of crime in the cities. When the Clinton administration came, there was a decided shift from that to things like health care fraud, which was a big priority for them. After 9-11,

And actually, after the World Trade Center was bombed in 1973, 1993, counterterrorism became a much more important part. And you could have a long discussion about whether that was a good thing or a bad thing, that the Justice Department was kind of the point of the counterterrorism spear back then. And then when Obama came in, it went back over to health care fraud and other types of things. So I don't think anybody doubts that it's, you know, president wins the election, president runs the Justice Department in the sense of being the chief executive and creates the priority list for what they want the Justice Department to do. But nobody sensible thinks that there should be political interference in the four corners of a prosecution or in decisions about who gets prosecuted. those shouldn't be political decisions. They should be rule of law decisions. You said they shouldn't be. And from what you said, it sounds like, is there anything preventing preventing it? I mean, you said no, insensible. But if someone wanted, a president wanted to say, you know what, not only do I want to have priorities of what the Justice Department pursue, my priorities are actually names of people, one, two, three, and four, and then health care fraud. Right. Is there anything that prevents that? Is that allowed? Yeah, this is where I always get in trouble with my fellow lawyers because they want there to be laws that control this. And I think it's essentially political, not legal. I mean, a defendant who has been picked out because of his, say, political affiliation, in the individual case has the ability to move to dismiss the case on grounds of selective prosecution and claims, like that, but I wouldn't want to exaggerate the chance of success of those. Those are very tough

claims to make, especially if there is actually underlying evidence that you committed a crime. It's a tough position to be in. If you've committed a crime that a lot of other people commit, but they single you out, because the first thing the court usually wants to know is, did you do it or not? And if you did, then you're kind of behind the eight ball making that claim. The main check in the system against presidential abuse of prosecutorial power is Congress, not the law. And as a result, you know, there's a variety of things that Congress can do from, you know, slashing budgets to holding up confirmations all the way up to impeachment and removal. And I get that people say that those are illusory remedies because they're not enforced

maybe even the way the framers thought they would be enforced. But I think in the system, that is the main check. So in theory, a president could ask for somebody to prosecute. Could he, would he be allowed to, not the Justice Department, but tell the IRS, you know, audit this person? I think this person should be audited. Is that something that the president? The answer is, could you as an exercise of raw power? Yes.

what would be the consequence. You know, Nixon, if you look at the articles of impeachment against Nixon, a lot of it had to do with abusing the power over the executive agencies, the IRS being one of them. So it's fair to say what's standing in the way of something like this would be Congress in the case if you had a Congress that was willing to say this is abuse of power impeachment and good people in good positions that would say I will resign and no, I won't do that. wouldn't cut the public out of it because I think, like, for example, I've been surprised in the last couple of weeks how lawfare went from, like, being a thing to almost disappearing, to the point that, like, Jack Smith looks like he's wrapping up his investigations. I expect that all to be done by December 2nd. I'm not sure Bragg isn't going to do the same thing in New York. If he doesn't actually dismiss the case, I think the case is going to be put on ICE.

for four years. I think it's not enough to say that the Democrats have decided that lawfare was a flop. I think they think it was actually counterproductive to the point that some people who monitor this stuff, I don't, but I read some of it. There was a kind of a regularity of labeling Trump a convicted felon after the Manhattan prosecution. That fell off over time to the point where there was much less of it in the run-up to the election. And I think that was because their internals were telling them that regarding him as such or calling him that, labeling him that, was as much a reminder to the voters that they didn't like the way that lawfare was done as it was a reminder to them that a jury had actually

convicted Trump. So I think there is, when certain lines get crossed in the way of abuse of power, I think there is public pushback, and I do think that has an effect of changing people's behavior. I was going to ask this later, but it might make sense more than the chain of events to ask it. Now, when you say law fair, do you think, and I know that was over time, I think you thought some of the cases had merit the documents case. I don't know if that changed over time.

But do you think when you say law fair, certainly the prosecutors in New York campaigned on going after Trump. But do you think someone, like we're discussing here, that Joe Biden in the White House instructed Merrick Garland to launch these cases against Trump? Or was, you know, when you say lawfare, do you think it was in the case in New York, in Georgia, but not the federal cases?

Or do you think, who was the person behind, who is the general in the lawfare? Who is the general top leading the lawfare? Well, I don't think that people have to have those kinds of conversations. I mean, I think that a lot of times you appoint an attorney general. I always used to say this about Obama and Holder. You know, there was always a lot of talk of Holder's bidding like Obama got on the phone and told Holder to do it. And I don't think it works that way. I think like Holder was put in because Obama knew exactly who Holder was and didn't want to have those kind of conversations and didn't have to. So I think it's more. subtle than that. I do believe that the Biden White House was fully aware of an approving of the lawfare campaign, all of it, including at the state level. And there were certain tells with respect to that. For example, Bragg's case in Manhattan is based on his claim of an ability to enforce federal campaign finance law that Congress, when it enacted those laws,

gave exclusive criminal jurisdiction to the Justice Department. In any other case, if a local prosecutor had tried to enforce campaign finance law against a sitting representative or elected official in a jurisdiction, the Justice Department would have raised, holy hell. And they'd have papered the federal courts and the state courts in that district with objections to the state prosecutor trying to enforce that authority. That didn't happen here. It's like the dog that didn't bark in that case. We now know from the testimony of Nathan Wade, the prosecutor in Fulton County, Georgia, who was removed from the case and ultimately disqualified, that he had meetings with the White House counsel.

One of the meetings was, I believe, I may have the date wrong, but I think it's November 8th or 18th of 2022. It happens to be exactly the same date that Attorney General Garland appointed Jack Smith as the special counsel and did so on the rationale that Trump's candidacy as Biden's opponent prospectively in the 2024 election somehow required. that appointment. So I think there's a lot of indication that there was a lot of political consideration for that. Does that mean that everybody got in a room and made a plan? In my experience, conspiracies don't often work that way. What ends up happening is you have

a bunch of people who are in a kind of a general sense like-minded and the schemes come together and they cooperate in them. It doesn't mean that anybody drew it up. as a plan, but I do think everybody was culpable in it. Let me ask you. I mean, to me, I'm not a legal person at all. So, you know, after January 6th, I mean, you favored impeachment, I favored impeachment as well, but, you know, didn't occur. He's now a private citizen. To me, it has to be some law that overthrowing the government is a violation. You're trying to, trying to remain in power is a violation of. What do you do if you are the DOJ, you know it's going to be seen as political in many senses because it's a

democratic president now. What is a department of, what is Merrick Garland supposed to do when he takes, when he finally is put in the DOJ with January 6th with the president of United States? Well, first of all, I think it was entirely appropriate for him to, to investigate January 6th, whether it was worth the devotion to resources that they gave to it to the point of, like, chasing people around the country who had committed misdemeanors to drag them back to... I'm not talking about the guys who, like, assaulted police officers and deserved 10-plus-year sentences. I'm talking about, like, all of the stragglers and paraders and that sort of thing. You can argue about whether they overdid it, but it was absolutely

something that should have been investigated. And I certainly have no problem investigating Trump for whatever crimes he may have committed. One thing I would push back against in the way you set this up is I think there are a lot of things, and I've struggled with this as a prosecutor and then in whatever this other career is, there are a lot of things that are in the nature of abuse of power that are not violations of the penal law and yet are much more serious. than most violations of the penal law. And that's a function of the fact that there is a certain amount of immunity that people

who wield public power operate with, which makes it very difficult for them to prosecute them in the criminal justice system, on the theory that if you made them personally liable for the way that they wield their political authority or their public authority, that would make it impossible for public officials to wield their power efficiently. This whole idea that they can't be paralyzed, you don't want to paralyze the police, you don't want to paralyze the prosecutors, you don't want to paralyze anyone who has to wield executive power with the fear that they're going to be prosecuted or sued civilly. That's the reason why it's so important that people get vetted. It's the reason, for example, why it's an important part of the Constitution that the Senate has an advice and consent role with respect to people who are going to be major officers of the executive branch and the judiciary. Because you're not going to be able to prosecute most of them afterwards. Most of the available measures against them are political, not legal, and it's because they have virtually a built-in immunity as far as their public authority is concerned.

So I think it's fine for Garland and the Justice Department to have investigated that. It was an uprising at the seat of government. It was unprecedented in many ways. It's a stain on our history. and obviously it's something the Justice Department should have investigated, but I would caution, I had a long conversation with Jonah about this a year or two ago. Federal prosecution is not a proxy for impeachment. And one of the ways you find that out is by taking somebody who should be impeached and then

put them in the criminal justice system. You know, if you impeach somebody, you're not required to afford them a presumption of innocence. It's a political process. What an impeachable offense, I think Ford was right about this back in the, when he was in the House of Representatives in the 70s, when he said that an impeachable offense is whatever, a majority of the House of Representatives decides an impeachable offenses, right? And I think that underscores that this is not a proceeding that has all the due process attendments that, a criminal justice proceeding has. You know, if you take Trump and you take him out of an impeachment proceeding and you put him in a criminal proceeding, then you have to treat them just like you would treat a terrorist or a mafia don or anyone else that you would bring into the system. He has an

array of rights. He's presumed innocent. He's got all kinds of discovery rights. And it's just a very different, it's a very different beast. In the political system, you don't have to regard Trump as presumed innocent after the Capitol riot. And even if you, if you, for example, they accused him the, I think the article of impeachment was incitement to insurrection or incitement of insurrection. You're not stuck if you're Congress with what the very demanding legal tests are of the crime of incitement. I mean, I've, I've prosecuted terrorists in the 90s for incitement. It's a very tough proof in a courtroom. It's not in a political proceeding. You're also not stuck in an impeachment proceeding with what insurrection is under the criminal

law. It's very interesting that for all the talk about it, insurrection, I think there were 1,300 people who were charged in connection with the capital riot. Not a single one was charged with insurrection, yet that's a crime that's been on the books in the United States since the 18th century. If your Congress and you impeach on insurrection, you don't have to prove insurrection the way a prosecutor would have to prove it beyond a reasonable doubt to the satisfaction of a jury in a courtroom with a lot of legal instructions from the judge about what that all entails. So the political realm and the legal realm are very different in this regard. Not long ago, I saw someone go through a sudden loss, and it was a stark reminder of how quickly

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save 10% off your first purchase of a website or domain. Well, let me ask you this about the documents case, because it seems to me that it might go against the law fair thesis. You respond to my argument here or, you know, you could say that they did, they bent over backwards not to bring it. I mean, the documents, they were trying to ask Trump for the documents. Please give them back. Please give them back. Please give them back. He steadfastly refused to give them back. If a DOJ was trying to, you know, just come up with laws that Donald Trump broke, you know, maybe they wouldn't have, whoever handles the documents, I forget the name of the agency,

wouldn't have bet over backwards to begin with to, you know, keep giving him chances to give him the documents back. Yeah. So I was, I was and remain convinced that there are serious crimes committed in the documents case. I have always thought that Trump's Presidential Records Act defense, I wrote pretty extensively about this, I thought that that defense is maybe frivolous overstates it, but I'm not, I don't think it's a very compelling defense. I think to the extent that Trump had a defense to make in that case on the classified documents front, it would have been that he was prosecuted selectively in the sense that there are a lot of people who did. things that are similar to what he was accused of, President Biden included, who weren't charged. But as far as just like a strict legal, if you put all that aside and it just, you deal with the facts of this case, I think that there were serious offenses that were alleged, and it sure looked to me like Smith had a lot of proof. I think Smith made strategic mistakes in that case

because I've had a number of classified documents issues as a prosecutor, including in terrorism cases. What happens is it brings you under the ambit of the Classified Information Procedures Act, which is unusual in that it makes you virtually litigate the whole trial before the trial happens because all issues of admissibility of classified information have to be vetted and ruled on by the judge before the trial so that everybody can know what the jury is allowed to see. So it's a very long process, even if you bring one classified documents charge, and Smith brought

like three dozen. So what I always thought he should have done was just sort of treated as a fast and nasty obstruction case, because I didn't see that Trump had much of a defense on the obstruction. He kept talking about how he had declassified the documents, but that's not a defense. It's not even a defense of the classified information charges, but it wouldn't be a defense to the obstruction because the grand jury subpoena that Trump was given commanded that he turned over all documents with physical classification markings on them. So whether or not he had actually declassified them, which was a far-fetched story as far as I could see,

was irrelevant because if the physical markings were on the documents, he was required to turn them over. And it seems like there's a lot of evidence that he knowingly retained them and misrepresented to the FBI and the Justice Department that the package of documents that they gave like three or four months before the search warrant was executed at Mara Lago. They represented that that was all of the documents with classified information markings that he had, and clearly there were well over a hundred more. So it seemed to me that that was a very serious case, and you could argue about whether he was singled out for prosecution. You could also argue whether and how much the case was affected by the Supreme Court's immunity ruling, because the original acts of, moving the documents out of the White House and to Mara Lago happened while Trump was president. So there would have been immunity complications because you would have had to figure out how do I tell the jury the story if I can't tell them the origin of it and how much of the origin could I

tell. So there's a lot of complications to it, but I thought it was a very serious case and I didn't have any problem with it. And I think Smith might have gotten it to trial and maybe history would have been different. I don't know what would have happened with immunity. But if If he had just done it as an obstruction case and not had classified information counts, I think he would have had a much better chance of getting it to trial. Final question on this. The opposite side of this argument is what the left says is that Mayor Garland didn't act swiftly enough, that, you know, they were too careful.

And had they started these prosecutions on day one and when earlier, you might have gotten to trial that because he was so slow and careful on this, It punted it too long and you didn't have these trials before. How do you respond to that? I have to say, I mean, you know, no American president in the history of the country has ever been prosecuted. So if they were deliberate in that regard, I think that's admirable. And you might say that, you know, despite all the things that you just said, they didn't think through the immunity. I mean, he actually tried to get the Washington election interference case to trial on March 4th, and they had a trial date in the March 4th of 2024, and they had a trial date in, I don't think this was ever anything but illusory, but they had a trial date in the Florida case of like May 20th, and that was utterly unrealistic.

On the Florida case, I said at the time, I thought it was completely unrealistic because of the classified information. Procedures Act. I couldn't see how they could conceivably get the case to trial the way it was indicted. But as it turns out, the immunity issue was much more serious and complicated than the Justice Department calculated. And even if they had, let's say they started six months earlier or eight months, whatever would have been responsible, you know, they would have had, they would have run into the immunity issue, and the thing that's different about immunity than other criminal law issues, most issues, claims of error that come up in a criminal proceeding. The way it works is you have to go through the whole trial, and then if the guy is found guilty, he's sentenced,

and then the judgment is final, and then the whole case goes up on appeal, and that's when you get to raise all the claims of error. With immunity, the idea is that the offense is actually trying somebody or bringing somebody to the system into the system who has immunity. So it's one of the rare things. Double jeopardy would be another where the law allows you to appeal instantly. You don't have to wait until the end of the proceeding. You can appeal right when you get a negative ruling. So that would have been tied up in appellate litigation for a long time. And the way the Supreme Court decided it might have decimated Smith's case, at least on the election interference case. I don't know how much of the...

that case was left that could have been tried. Matt Gates, you don't like him for Attorney General? What is your case against him and what should the Senate do? Well, look, he's unfit. You know, we can get into the, well, in a second, get into the details of it. But, you know, look, if you have a 5347 Republican Senate and you have no filibuster on appointments, so all you need is, you know, 50 plus one, right? The idea that you would need to come up with this cockamamie recess appointment scheme

in order to even conceive of getting someone like him implanted in the Justice Department screams pretty loudly that he's not confirmable. But, you know, you're dealing with somebody who's got a history of very troubling misconduct. And even if he escaped being indicted, you know, we have a higher standard for fitness. of a public office, then, you know, I'm clever enough not to get myself indicted or I at least convince the Justice Department not to do it. All of that information, which goes to his fitness, would come out. And even though the, he apparently, if the reports that will be believed, he resigned from Congress in order to prevent the ethics report from coming out. But the

ethics report was going to go to the Senate Judiciary Committee. I mean, that information is going to come out and it goes to his fitness. And I don't even think it's the most important thing here. He practiced law for like a nanosecond. I think he, you know, he got out of William and Mary law school and practiced law for a very brief period of time in Florida where he did nothing notable that I, that I've heard of, and I've tried to find stuff. And he immediately dove into electoral politics. He's been in either state legislature or Congress since 2010. So he's really not done any legal work. There's no requirement that you be a great legal scholar to be the attorney general. But, you know, it should be, the lack of it is certainly a mark against him. And then

since it's the Justice Department that he's being asked to run, it's not like he's being given some other job in the government, right? This is the chief law enforcement. officer in the country, the one who is chiefly responsible for the administration's defense of the Constitution, what do we know about Gates? The two most notable positions he's taken legally are he joined the Texas lawsuit in 2020, where they took the absurd position. This was Paxton, Attorney General Paxton's lawsuit down in Texas. They took the ridiculous position that a state has standing to object to the counting of state-certified electoral votes of other states, which was such an absurd legal position that the Supreme Court didn't even give

it the time of day, and that was when they had all three of the justices that had been appointed by Trump on the court. The other legal position he took, relatedly, is that the vice president has the authority to invalidate state certified electoral votes. If that were true, if what Gates' legal position, one of the only two important ones I can see that he's taken in his career, if that were true, then Kamala Harris could prevent Trump from being seated as president in January of this year.

So there's no indication that he has any sense. legal acumen. He doesn't have legal experience. He's up to his eyeballs in misconduct. And the only other thing he's done of note is this vanity project, which is from what I can detect, spurred only by vengeance against Kevin McCarthy, to vacate the speaker's chair and send the Congress into this, you know, I don't remember, was it two weeks or three weeks of complete chaos and disarray? And it was for no reason. Like it didn't help Gates. It didn't help the country. It didn't help anyone. So I don't know. What's the case for him as Attorney General? Well, I mean, you list a lot of the things you mentioned in your column, these kind of parade of

horribles. And I'm thinking to myself, you know, Trump, you know, you want people to read this He goes, this is terrible. Trump would read this, you know, the Texas case, the vice president, go, what a great pick. That's my guy. Why do you think he, why do you think he wants Matt Gates? I look at Gates and Tulsi Gabbard, who I don't, you know, I wouldn't put Tulsi Gabbard as, you know, director of national intelligence. If I had my brother's, there wouldn't be a director of national intelligence. I kind of campaigned against that back in the post-9-11 days. I don't think that you. solve a intelligent sharing problem in the intelligence community by taking, you know, the 16 agencies we had and then lopping another bureaucracy on top of them, that doesn't seem to me like a good solution and it never has. But I think he envisions that both Gates and Gabbard, to Trump, I think he thinks that the biggest attack on him in connection with Russiagate and the Ukraine impeachment and, you know, other things that came up before and during his term in office is kind of the law enforcement and intelligence

apparatus of the government. So he thinks that these two loyalists who are skeptical of the two agencies that he's trying to appoint them to will go in and clean house, which is to say that they'll go in and they'll, you know, fire the people who can be fired and marginalized the people who, you know, can't be fired under civil service rules. I think it's telling, Jamie, that one of the other things we hear is that on day one, one of the things that the executive orders that he wants to sign is the one that Biden canceled that would give him broader authority to fire people in the executive branch who otherwise have civil service protection. So, you know, I think ostensibly, he would say he's trying to root out politicization in the Justice Department

and the intelligence community. And I must say, I think that's a major problem. But I don't see Trump as a sort of a sensitive altruist. I think he's trying to get the people who he thinks got him. And he expects that these two people would go in and clean house in those agencies. Well, let me quote from the piece a little bit. You write, speaking, I think, of the criminal trials, the lawfare that you saw against Trump, Trump is thus highly resentful, suspicious of politicized law enforcement. You go on to say, the president-elect may hate how the Justice Department has been run over the last several years, but he must not lose sight of the vital institutional role

in boistering law and order to which Trump proclaimed his commitment on the campaign trail. Do you have any concern that his issue was not with a politicized Justice Department, but one that he thought was targeting him? He's okay with a politicized Justice Department that might target other people better as enemies? I'm worried about that, but I'm not, you know, I try to remind myself that he was president for four years, and we really didn't get that. Now, that could well be that the people at the Justice Department were Jeff Sessions and Bill Barr, who are. on record and I think in word indeed committed to the idea that we shouldn't politicize law enforcement. I agree with Bill that no one's above the law, but if you're going to prosecute a high public official, particularly a president, but it could be any high public official, it ought to be what

he called a meat and potatoes crime. That is to say, it's got to be a serious offense that people can wrap their brains around, that they can think that anybody who committed this would be prosecuted for it, and you have convincing evidence of it. And if you don't have that in the political context, I don't think those cases should be brought. Well, I mean, I guess my question would be, I think in the piece you call him a toady, Bill Barr wasn't a toady. He might, he had similar views of perhaps politicization of the Justice Department, whether you agreed with them or not. You could find a lot of people that would go in there and clean. House and would have similar views. Why you would pick Matt Gates, perhaps, is because you wanted a toadie that would not do the other, would, that might that might be willing to do the other stuff. Yeah. I see, here's the thing about this. Having observed Trump for in the political domain, I mean, I'm a New Yorker, right? So we, we've observed Trump for half a century. But, uh, having observed them in the political domain, I don't think there's a lot of deep thinking going on there. Like, like, like, like,

I can totally believe that Susie Wiles left the room and left Trump with Gates and Boris Epstein, and then the next thing, you know, Gates was AG. Like, you know, that not a lot of thought went into this. I'm not saying that those things that you're raising aren't concerns. But I used to, when he was president the first time, I would contrast what was going on in government day to day, where the guardrails, I think, really did work because of people like Barr and Pompeo, you know, you had people who kept him on the straight and narrow. So there was the way the government worked.

And then there was like the Twitter feed, which I used to call all in all the time, because he'd never had like an unexpressed thought and he would say bombastic things. As Barr said any number of times, but at least once in a very notorious context, the tweets made it impossible for him to do an effective job in some ways running the, Justice Department, because if, for example, you're trying to prosecute important cases like against a jihadist who tries to run over a bunch of people in the streets of Manhattan, and you get Trump popping off on his Twitter feed about how the guy has to get the death penalty and saying all kinds of things that might be appropriate for, you know, Joe sitting at the corner of the bar to say,

but not the president of the United States, that makes it very hard for the Justice Department to function. So what you're asking me is, is the four years that we had, which is our measure of Trump, because it's the only one that we have available, did he essentially walk the straight and narrow, at least up until the end, because of the people he had around him who were keeping him within the guardrails? My understanding, didn't he not try through some, I think, Rudy Giuliani and others, to have the Justice Department do an indictment of Hunter Biden? And that's when he turned to his notes.

Didn't he try and they kind of didn't want meetings with Rudy Giuliani over this? So Giuliani did an investigation in Ukraine, right, into what the Bidens were up to there. And this is in connection with the energy company there that had Hunter on its board. And this gets us into, I think, the perfect phone call between... I don't want to really... But he did send... He was trying to have, or at least acquiesced or Tianani, someone was going there to get, to try to get the Justice Department to look into Hunter Biden.

According to Barr, notwithstanding what Giuliani said to Zelensky, Trump never directed Barr. to do anything with respect to Hunter. And what ended up happening was Rudy collected all of this information. I'm familiar with Rudy because he hired me back in the, back in the 80s. Yes, I have a question about it at the end. Okay. But Rudy collected all this information.

And what Barr did was set up a system so that anything that came in regarding Ukraine, particularly from Rudy, was vetted because they wanted to. to make sure that it was on, you know, that it was evidence that could credibly and properly be used. But according to Barr, Trump never directed Rudy to do anything. Now, in the run-up to the 2020 election, I distinctly remember Trump saying publicly that I think both Biden should be arrested. He didn't just want Hunter arrested. He wanted Joe arrested at some point. So he did say some crazy stuff, but that didn't mean that, you know, he gave direction to the Justice Department. And in fact, I think part of the reason he currently is on the outs with Barr is he's

angry that the fact that they had Hunter Biden under investigation for the entirety of 2020 was something that was concealed, as it was supposed to be. You're not supposed to speak publicly about investigations until you're you're ready to make charges. We mentioned the reporting that Susie Wiles was out of the chamber of Air Force One when Boris Epstein came in. And, you know, Trump is not someone who plots and plans. It's kind of instinctual. And that may be right. But I wonder if people are behind the scenes because you directed people at National Review to see Reed, Ed Whelan. I don't know how to say his last name of peace. Whelan, right, Whelan, in the Washington Post, where he says he's heard from conservative.

lawyers around town of a plan to use Article 2, Section 3 of the Constitution, which allows the president to adjourn the House and Senate if there's a disagreement between adjourn between the House and Senate. Basically, if the Senate wants to use their advice and consent role, he can go to, has to get the Speaker of the House on board to say, issue that you want to adjourn. And if the Senate says no, he can injure him and then recess appoint all his picks. You know, so I guess I would frame it this way. In the beginning, we talked about guardrails and you think that guardrails really protect against Democratic administrations are less than they do Republican administrations. But we also talked about, you know, these are kind of rules that we have

with the DOJ that you really have to have good people not to abuse them because they're not necessarily breaking the law. And what we see now, and I just like you to comment, we have a president picking someone who is clearly an incompetent toady for attorney general with some plan, maybe not from him, but from someone around him to be able to resace appointment, him and others without his Republican Senate having even a chance to say yes or no. I don't know if he plans to do anything bad or not, and I'm optimistic ultimately. We'll get through this. Well, that's not a good set of facts that are on the table here for hoping that things turn out not to be politically infused in the Justice Department or anywhere else?

Yeah, I think to the contrary, you're right, it's not good, but I do think that it'll be a demonstration that the guardrails work. The plan that Ed described in his Washington Post piece can't work unless Trump is able to manufacture a disagreement between the House and the Senate that would give him a pretext to declare a recess and then make recess appointments. It's not going to work because it's not something that Mike Johnson, even if he was disposed to do it, which I doubt. It's not something he could do on his own. So you would have to get, you would have to get 218 votes in the House under circumstances where the Senate would object to this to have a joint resolution of adjournment. At a time, by the way, when they're both in

session. Like, you know, I mean, they start their session on January 3rd before Trump starts, right? And they have no reason to not be in session because the beginning of a new administration is like the busiest time for Congress, at least in regular order of the way things cycle. So they'd have no reason not to be in session. I don't think there would be 218 Republican votes for that. The margin's going to be very small. I think it's going to be like 213 to 212 will be the biggest that it could be for the Republicans. But I don't think he would even get a majority of Republicans for this. Democrats would unify against it. So there wouldn't be votes in the House for it. Just to be clear, the guardrail in this case is Republican members of the House

representatives who have traditionally not, not stood up to the president. Correct. That would be part of the guardrail, but to pull this off, they would need that. They would need the Senate to just roll over, which I don't think is going to happen. I don't think that we can consider this without being realistic about what the coverage would be like if they tried to do something like this. it would be like the biggest scandal in the history of scandals, which typically is something that makes Republicans, at least a lot of them, stand down from doing something crazy.

I mean, even when they get accused of doing things that they're not doing, they kind of step back when there's bad publicity. But the final guardrail here, Jamie, is when the leading case on this, which is NLRB versus canning, written by, well, the... The important opinion for current purposes is the concurrence written by Justice Scalia in that decision back in 2013. He has a very compelling theory that the only time you could do recess appointments, which he thought was an anachronism that, you know, I actually think we should just repeal the Constitution or amend it to take that out because it's not a situation that exists anymore. so it can only be used for ignoble purposes, as the justice said. But his theory was that recesses are the period of times between formal sessions of Congress.

And that textually, the only way that you can do a recess appointment is if the vacancy is created during the recess and Congress is or the Senate is clearly out of session at that period of time. So, his point was that, like, you can't, like, declare a 15-minute lunch break that they take in the middle of a session as a recess for purposes like this. And the reason I lay that out is the court has changed dramatically since 2013 or 2014, I guess it was, when Scalia wrote that. So I think now there would be a majority on the court for Scalia's view. it was five to four back in 2014. Now I think there would be a clear majority for Scalia's view of it. And I actually think the progressives would probably vote along with it because now it would be Trump rather than Obama who's in the saddle. But I think there's a lot of things

that would have to happen for Trump to be able to pull this off. And I just don't see it. But you know, I hope I'm not proved wrong. Let me ask you one more question, a legal question. I've heard a concern with President Trump. There was some instances, I think Esper writes about in his book where he, Trump wanted things done, which they would tell him that's not legal to do, sir, and they certainly wouldn't do it. Some people I've read, I try to find where I read this. This was months ago. I don't know if it was just a concern or someone maybe read there was even talk of it, but is this legal? Could the president tell a cabinet member or someone below them to do something that is illegal and that he will pardon them. So do not worry about the legality of something.

Could he use the pardon in that way? Yeah, I think he probably could. You know, part of the this is part of the problem of vesting awesome power in a irresponsible actor. The Supreme Court in its immunity decision basically said that if the president is exercising a legitimate power of the executive, a prosecutor is not allowed to inquire into the motive of the president in exercising that authority. So even if the motive is corrupt, that would not be something that a prosecutor would be able to look into. Now, the court kind of carved something out for bribery, you know, where it would be possible to, because bribery is mentioned in the Constitution as explicitly is an impeachable offense. By the way, that doesn't necessarily mean it's a

prosecutable offense. But they did have a theory where you could probably prosecute the president for bribery. But I have to say, pardon is very tough. I had the, after Clinton left office in 2000, I had a piece of the pardon's investigation back then. And I ultimately, this was kind of amusing because you wouldn't believe if you knew now who the people, the political leanings of the people who were involved, you would not be able to predict how they came out in a law enforcement sense. But I didn't think we could prosecute Hillary Clinton in connection with that because I thought it was a presidential power that was beyond our ability to prosecute. I just, it's very hard when a president abuses his power to do anything other than impeach him.

Another cabinet nomination, Pete Hanksett, you wrote on Twitter, Pete Hacksett is a friend of mine. He's a great American patriot and whip smart. And he believes our military is a national defense force, not a sociology experiment. He will be a great sect. There are a lot of people who have a lot of criticisms. Here's my one question is it's the large bureaucracy of the Pentagon, not having experience as far as I can tell, managing or handling such a large bureaucracy, can someone without that some type of background managing really large groups, a CEO of a company, handle the Pentagon

and be able to beat back the bureaucracy that I'm sure that he wants to beat back? Well, I worked in the Pentagon for a year after I left the Justice Department for Paul Wolffowitz when he was there. So, you know, the assumption in your question is that anyone can run the Pentagon. And I haven't seen much evidence of it because the Pentagon is so enormous and its problems, especially with procurement and budgets and like trying to figure out where the dollars are going and who's where on the York chart. they're pretty, they're pretty challenging for anybody who's ever been in the job. So I think Hegseth will be able to have people who are, who are advisors who, you know, will try to

manage that as well as any secretary of defense manages it, which to my, in my experience, is not particularly well. I don't, I just don't think it's a, in a business sense, it's not a, it's not a manageable endeavor or enterprise. It's the kind of thing that wouldn't even exist or couldn't exist in the private sector. It exists not because we want it, but because we need it. So I hear those concerns, and I don't think they're frivolous, but I also think that I don't think it's uniquely a problem for haggseth. I'm going to close on these three somewhat random questions. You mentioned you worked for Rudy Giuliani. One of the things I've tried to explore on this podcast, of my former podcast over the years is what happened? How did Rudy come from the Rudy of 9-11 to the

Rudy we see now? Do you have a theory? Do you have an answer for that? The difference of Rudy's that we're seeing over the last 20, between the last 23 years, the 9-11 Rudy and the Rudy now? Yeah, I have some ideas about it. I don't know that I want to express them all publicly, but I think he's had a lot of a lot of personal problems in his life and that that, you know, probably has a lot to, is a lot of an explanation of how things went south for him. I think, you know, look, I think someday there's an Italian opera to be, to be made about Rudy. He was a, he was a great boss, but he was a historic figure in the aftermath of 9-11. And it's tragic to my mind to see somebody who had a legacy as he had, who wouldn't have had to do anything

else in his life and could have been remembered as a figure of, really an iconic figure, you know, that he got himself into the situations that he got himself to me is just tragic as somebody who's, who knows him for many years, who owes him a lot and, you know, personally, and who feels awful about what's happened to him. For what I can tell, you grew up in New York, at least went to school in the Bronx, You might be too young to have been in legal profession at this time. But I'm wondering if you ever had any interaction with Roy Cohn or knew anybody that had interaction with him and had stories, because I think he's a window into the president.

Yeah, I absolutely think that's true. I was a young prosecutor when Roy Cone was representing, I think it was Fat Tony Salerno in the commission of Kosinosa case that we had in the Southern District. And this was a case involving the heads of the five mafia families in New York. And the thing I remember distinctly about Cohn, and I, you know, having grown up in New York, and Cone is not just a New York person, but, you know, he was somebody whose career I knew well going back to the McCarthy stuff with Bobby Kennedy and all that jazz. But I actually was sitting in the courtroom.

I had to turn to a young assistant who was. was next to me to say, like, did he just say what I thought he said? We were trying to keep Tony Salerno in prison while it was pre-trial on what was then a pretty controversial and brand new government process that you could keep somebody detained prior to trial as a danger to the community. And one of the charges against Salerno is that he had signed off on the one of the most famous homicides in New York in the 70s. It was the killing of Carmine Galante. It was the head of the Banana family in Brooklyn. And Cohn actually got up in court and argued to the judge that, you know, without making any admissions or anything of the sort, a lot of people would say

that killing Carmine Galante was a social good. So that's my best memory of Roy Cohn. And I do think it might be a window into a lot of things. And finally, the world's most powerful viewer of your network is going to be president again, the network you appear on Donald Trump. He regularly watches TV. I wonder, has he ever met him? Has he ever called you and talked to you after seeing you on air? I have met Donald Trump.

I was at a, in 2016, before he was elected, I was at this fairly, well-known gathering of a bunch of, you know, supposed experts in law enforcement, immigration law, national security stuff, and the like. I don't want to say I was exactly invited there on false pretenses, but I was sort of led to believe that it would be a small conversation with a like a handful of people. And when I got there, it turned out there were about 40 people and it was around a big table. And then 15 minutes into it, they let the media in to take pictures. So it looked like Trump presiding over a cabinet meeting. So I figured like we'd been had. I don't think he was all that interested in what I had to say about

border security and the Muslim Brotherhood and the like. But that's the only time I can remember meeting him personally. And I have had people reach out to me. over the years. But I've always thought, like, first of all, if you watch what Trump has said about me over the years, and I must say, when I was a kid, if my father thought that, like, the president of the United States was going to be talking about me, it would have been shocking and stunning and a privilege and a great, you know, like a once in a lifetime kind of thing. But once it happens... He once called me a loser on Twitter, and I put it, I have it framed in my house. My father wasn't alive either. If he knew the president was going to call me

on Twitter a loser, I know. He would be amazed. But the thing is, once it happens with some regularity, it no longer has the same cachet. And the other thing is, like on Monday, Wednesday, and Friday, I'm just the brilliant, widely respected Andy McCarthy. And like on the other days of the week, I'm a moron. Right. And how that goes depends on issues. issue to issue. So when I've had people reach out to me, the only thing I say is, you know, look, I, you know, sometimes I like to try to call it like I see it. So if I think the president's in the wrong, I say it. If I think he's not in the wrong and he needs and he should be defended, I try to defend it. But if it's if it's of any value to them and in terms of my own credibility, it's important that I not be in the tent because I'm not in the tent, but I don't don't want to be perceived as being in the tent because I'm not, you know. So I've tried to resist any entreaties to come into the fold. And I think, I don't think this is unique to me. I think that their thing is, if you say nice things about Trump, they would like you in the

fold. That's just, that's just my impression of how they operate. But I, you know, it's not good for me, and I don't see how it would be good for them. Andy McCarthy, thank you for joining the Dispatch Podcast. Jamie, it was my pleasure. Thank you. You know,