The Ricochet Podcast - Weighing the Charges

Episode Date: August 4, 2023

Another week, another indictment. Another president, another scandal. So we call on the house prosecutor, Andy McCarthy, to weigh the evidence before us and join Messrs. Lileks, Long and Cooke as they debate the merits of the cases against both Trump and Biden and see where we think we stand.But more importantly, James has thoughts on the cultural event of the decade. Yes, he has seen Barbie.You're all entitled to one phone call. Use it wisely.

Wait, did you say Sunderland? Sunderland? Am I having a stroke? Ask not what your country can do for you. Ask what you can do for your country. Mr. Gorbachev, tear down this wall. Read my lips. No new taxes.

It's the Ricochet Podcast with Charlie Cook sitting in for Peter Robinson. Rob Long is here. I'm James Lonnox. And we're going to talk to Andy McCarthy, because if there's an indictment, it's time to talk to Andy. So let's have ourselves a podcast. Charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. They were a disaster. They were a disgrace to our country.

And we've caught them. We've caught them all. Welcome, everybody. It's the Ricochet Podcast number 353. How did we get this far? Simple. The raw power of Ricochet.com rules on decade to decade go there by the way take a look you won't be able to see the member feed which is where so much fun happens

because uh maybe you're not a member but if you sign up you'll be the keys to the kingdom will be granted and you'll see exactly why we've been around for so long and done so many wonderful things with the help of the founders rob long and and Peter Robinson, who is not here again. He is off on an anabasis of some sort, and we'll hear about them that soon. Don't worry, he's coming back. But sitting in his place in his stead is Charles C.W. Cook, who, of course, recently went on Ricochet to tease 5.0, the new version, which is coming soon. And I can't wait. Maybe we'll hear about that at the end of the show. But first, Rob. Is it really 5.0, the new version, which is coming soon. And I can't wait. Maybe we'll hear about that at the end of the show.

But first, Rob. Is it really 5.0? It's 5.0. Did I miss a.0 or something? Did I miss a point something? I thought it was 3.0, but I guess. No, no. Four was the blue.

It was the one that we have now. 1.0, of course, was entirely more. Oh, I remember 1.0. Believe me. It's got my blood in 1.0. That's right. And the number 2.0. That's why it doesn't work anymore.0, believe me. It's got my blood in 1.0. That's right. And the number 2.0. That's why it doesn't work anymore.

That's exactly right. It's so sclerotic and clotted with cholesterol. I remember 2.0, which was all ticker tape delivered by messenger pigeon, but that was great. Anyway, before we began, Rob said he wanted to throw a curveball. Yeah, okay. I want to confess something to my friends on here and my friends listening.

And I, you know, I just, I want to, I want you to tell me if, if this, I'm just telling you my honest reaction, my absolutely how I read this news story. And you tell me if I'm a, you know, hideous racist or not. Two U.S. Navy sailors were

accused and arrested, I think, of passing secrets to China. They were arrested in California. They were arrested Wednesday. They were in California, arrested Wednesday. Separate cases accused of passing sensitive natural defense information and military secrets to Chinese agents in exchange for money.

And I scrolled way down, way, way, way down in the article to see that one of them was a machinist mate named Jin Chao Wei, also known as Patrick Wei. And no way. Yeah. And the other was a petty officer named Wen Heng Chao. And when I read, also known as Thomas Chao or Zhao, I think it's the Z-H, Zhao. And when I read that, I went, oh, of course.

Of course. Of course. I mean, I'm not saying that I was right in this response. I'm not saying that, oh, I have a, I'm just saying that my natural response when I read those two names of those two U.S. naval officers charged with espionage for the Chinese government, my initial reaction was, yeah, I figured that. And then my second reaction is, wait, don't tell me I'm not a racist yet. My second reaction was, shouldn't they have been keeping an eye on those guys? Well, that would depend on a lot of things.

I mean, if in the 1950s you saw that a sailor had sold nuclear secrets to the USSR, you might think, I wouldn't be surprised if this is Ivan Ivanovich, you know, something like that at the the bottom of it because you would think perhaps they'd gotten to him through family connections the rest of it that would not be an unreasonable reaction as far as keeping tabs on them I would say no unless there was some reason unless they had family ties back to unless

there was some hint that they had connections to the CC otherwise I unless there was some hint that they had connections to the ccb otherwise i do we do we look at the guys who've got venezuelan uncles and uh and put them under the microscope do we we're not under uh we're not in a global competition with uh you know venezuela last i checked was not a global hegemon um i don't know i mean yes i'm i guess you're so your answer is yes i am native born americans who happen to have a particular ethnic heritage do not seem to be automatically uh suspect unless you got something that tells you keep an eye on that guy yeah okay no you're probably right all

right but you seem to want to be a racist here rob no i No, I don't. I really don't. I just, I was a present to my instant reaction and I wasn't proud of it. I said, okay, I'm not going to pretend I didn't have this reaction. And then when I didn't pretend I had the reaction, I thought to myself, well, I mean, I know it's complicated, but I mean, I was not surprised.

And was I not surprised because I'm, you know, a bad person? Or do I, is there, I mean, and now I'm going to complicate things by adding to it, a bad person? Is there a... Now I'm going to complicate things by adding to it something that happened, a statement that was made on July 24th by the CEO of Raytheon,

which is one of the biggest defense contractors in the country. And Raytheon CEO Greg Hayes said there's no way to pull supply chains out of China. And Raytheon CEO Greg Hayes said, there's no way to pull supply chains out of China. So Raytheon, one of the biggest defense contractors, high-tech defense contractors in the country,

is going to continue to get a lot of its stuff in China. Okay, that's all I want to say. Well, he's wrong. It just takes time. It takes time, money, and will. Like the rest of it, like every single bleepity bleep farggin problem that besets this country, it takes will and a bit of time, but mostly the desire to do something. But I guess we're in the era of throwing up our hands and shrugging our shoulders and saying, that's a big job. I can't do that. Anyway, Charles, what are you going to say? Well, I don't think you're a racist, Rob.

I think that the... No, you asked the question. I think that this all depends on the next step. So if the question is, are you a racist for not being shocked that the two people within the US who were passing secrets to the Chinese were themselves of Chinese origin, however far back that goes, that's not racist at all. If your next move were to say, bring back the Chinese Exclusion Act, it would be, which you didn't say.

I think that this is, in a sense, of a piece with the plot of Oppenheimer, which I saw at the weekend. It was terrific. The movie was admirably nuanced. And I left it thinking, well, of course the US government was suspicious of Robert Oppenheimer because he had been a communist or communist adjacent. Right.

Now, if the conclusion from that is therefore we should throw all communists in prison or mccarthy was right about everything well that's something else isn't it but yes of course they were worried about people who were communist adjacent or communists themselves because do you know who actually spread all of our secrets to the russians people who are communists or communists right so i don't think it's unreasonable to say well if we are going to have a pipeline from the united states to china it is more likely to be populated by people who are have chinese names than it is by say me well that seems reasonable the the trick always is not to overreact and open internment camps. Right.

He's right. I mean, it is not racist to be not surprised. For example, when somebody who had that terrorist incident in Fargo, North Dakota, where a man opened fire on the police with automatic weapons. And it was not completely surprising that he hailed from the Middle East. And the people in Reddit were saying, oh, you know, all the races are going to be yelling about this. Look. And they had a picture of the guy and he didn't look particularly cliched Syrian, but I'm not sure what a Syrian looks like. Point was not his ethnicity. The point was his origin, I would say, and the fact that he came

here from Syria in 2019 and perhaps did not take to the customs and folkways of Fargo, North Dakota, as well as he should have. I mean, we all make these assumptions, these calculations a million times a day. And of course, everyone's had their implicit bias tests where you're told. I mean, I told, have you guys had implicit bias tests?

No. Yeah, okay. Well, the one that I like to say is that we were shown a whole bunch of pictures and we were asked to make uh assumptions about them and everybody's very nervous of course because if we get the wrong marks we think we're really going to get something put down in our file and they show a man who looks like you know he looked like bob from twin peaks and he had long hair right and a scary face and a leather jacket. And he was holding in his hand a bar, like a metal wad.

So what assumptions did we make about this? And I sort of, you know, everyone is, well, he's kind of a scary character and maybe I'd cross the street. Well, then they zoom out like that. And it turns out that the bar that he has in his hand is the handle of a baby carriage, aam and there's a there's there's a he's pushing a carriage it's like weren't you stupid to assume what you did based on what you saw and i wasn't look i'm not walking around with a toilet paper tube up to my head staring at people

through a small little aperture i would apprehend the totality of that man at the time and would be able to tell you that he's no threat whatsoever because he's got a baby carriage i would have baby her baby herman from who you know from the roger rabbit in that movie is going to you know pop out with a stogie in his mouth and wake us all with a machine gun i would pay so much money to have been in that room with james i mentioned james james that is such a dumb test right right? That's the equivalent of saying, James, tell me there is a man and he wants to kill you. What do you do? And then you say, I run away and they say, aha, I meant kill you with kindness. Don't feel stupid now.

Like, well, yeah, now you've changed the entire premise of the question. I do. Yeah, precisely. I was unpopular with them from the start because when they asked me what my ethnicity was, how I identified, I said North Dakotan, because I have preference for Mondrian-like compositions, I built something that segregated the individual colors in the structure to make it aesthetically balanced. And I had to explain to the person when I said this, do not take this as a metaphor for my desire to wall off ethnicities into separate groups or physical localities in real life. I just think it's more... I mean, I felt really, really nervous about the fact that I have is expressing an aesthetic pleasure with Legos and that somehow this spoke something about me. It was all just ridiculous. The whole notion of it. And I'm sure I'm going to have to go through it again. If my boss would get ahold of this. Anyway. So Rob, there you have it. I guess we

give you a pass, but you know, we would. A modified limited hangout pass, I guess we give you a pass, but, you know, we would. A modified limited hangout pass, I guess. I was just thinking that phrase as I was walking back from the drugstore with a sack of meatballs. Honest to God, limited modified hangout. I was thinking that that's what they're doing with the Biden and the, well, of course, of course, he, you know, met with his son about business. Of course, his son made money from China, which was not what we heard before. How are you guys taking the sort of shifting narrative? I mean, the four Pinocchios was granted to Biden by the Washington Post just a little bit ago, which is everyone saying the signs that the narrative is cracking.

Walls are closing in. I'm not sure about that, but what do you think is the next step here? What are we looking for to come? Well, I mean, we should say that our guest today will be Andy McCarthy, so we'll be talking about the really big story this week with him, so we're not really avoiding that one. Look, there's so many weird things about the Biden family and Biden presidency. And I just don't understand.

Maybe they've got some genius plan. I don't understand why with the seventh granddaughter, they didn't make it a big deal. I don't know why they're embarrassed by this. This seems like it'd be a heart-warming moment. I don't understand the strange protection of Hunter Biden. I don't really get it. There's a million things they could do to neutralize that and to actually put it in context so people feel a little bit sympathetic to this guy. I mean, not to Hunter Biden, but to his dad. The weird sort of Jersey City mafia style, kind of not Tony Soprano, but like, you know, when the Sopranos,

when they were all involved in like the little stuff that got ugly and nasty, but it was like over like $1,100. That's what this feels like. And I don't understand how, I mean, I'm always surprised at the incompetence of the Biden political team. It just always surprises me because there is so much there that they need to do. And there's so much work to do. And it's such a you know a target rich environment and their political operation is so incredibly amateurish and incompetent it makes me think that um you know honestly it makes me think that there's that's a lot worse than we know

that this influence peddling is a lot worse than even our fevered anti-Biden imaginations can conjure. I'm not going to make the same mistake as I decried with the Russiagate nonsense and get ahead of myself or make accusations or insinuations that aren't supported by the evidence we have. But I will say... Okay, I will.

But I will say that what we currently know about Hunter Biden and Joe Biden's involvement with his business is substantially worse than anything we knew about Donald Trump and the Russiagate allegations. Substantially worse. And yet, I won't say inexplicably because we all know why, infuriatingly, it's being ignored. I am so tired of reading nothing about it, if that makes sense.

How many times did I sit on television in 2017, 2018, with everyone around me on CNN or MSNBC or what you will, hyperventilating and thinking, you know, I'm not going to sit here and say, that sounds like a load of old crap, because if I do that, I will lose my career. It will be played every time I say anything, if I turn out to be wrong. Right. Or I didn't do it.

But I sat thinking, I think that's unlikely. And I said, I don't know. I would wait to see the evidence. Of course, if it were true, it would be very serious. But I don't think we have any evidence this is America. We know so much more that is a problem in this case. And yet it seems to me no one is deliberately, no one in a position of power in the press is doing anything about it and and it does matter because people think oh well why doesn't the right just build you know these great investigative reporting teams i think it's a long-term plan that is actually correct i think the right has

absolutely dropped the ball on this but you can't do it overnight you know the the expertise at the post and the new york times and pro publica and elsewhere is necessary for this one and can't be matched except maybe by the House of Representatives, which is doing its job. You're wrong that the press isn't doing anything. It isn't saying anything. NBC News, one hour ago, Hunter Biden Business Associate testified he has no knowledge of wrongdoing by Joe Biden. You would say today, Devin Ar testifies joe biden never talked business when put on the phone washington post devin archer said the opposite of what republicans claimed so there it is except i'm i'm sort of i and appointments and money and prosecutorial firing and the rest of it does not smell like lutefisk that's been left in the broiling sun for three hours. A couple of weeks ago, maybe a month ago, there was a story with three bylines on it

in the Washington Post about a Christmas party that Clarence Thomas had held, which many of his clerks attended, and then paid him $20 via Venmo for the chicken fingers and hamburgers and hot dogs and Pepsi. And there were people on Twitter saying, it's very clear what's happened here. These $20, $20, these $20 Venmo payments are bribes. They're a vig.

They're a vig. We all know how this works. We've seen the movies. They're $20. And then people would say, well, could you talk me through how the mechanism works? It doesn't matter. Once the money had been paid,

Thomas knew what to do. All right. Now the same people are saying, Joe Biden got on the phone and talked to Hunter Biden's business associates. But we can't draw anything from that. Come on. Right. Right. Yeah. Clarence Thomas goes on a vacation paid for by, I happen to know, a lovely man, actually, and his friend, and a legitimate friend, and it's clear indication of bribery. Joe Biden gets on the phone with Hunter Biden's clients, and it doesn't mean anything.

It's not bribery. Consider it an investment. We use those words. Government invests. People don't bribe. They invest. But all of us like to invest in things, right? Different. The market, essentials, ways that our life will get better down the road.

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order when you use the promo code RICOCHET at BowlingBranch.com. That's Bowling Branch, B-O-L-L-A-N-T, branch.com. Promo code RICOCHET. Exclusions apply. See the site for details. And we thank Bowling Branch for sponsoring this, the Ricochet podcast. And now, if something legal happened, we go to our legal guy. I was glad to see him, too. Andy McCarthy, senior fellow at the National Review Institute, contributing editor there as well, and as well at Fox News. Served as an assistant U.S. attorney for the Southern District of New York. And Andy, how you doing?

Good to see you. Indictment number three. This is going to be the one, right? This, the walls are closing in. They're going to sink the guy. They got him this time. Or do they? Walk us through what's being accused and what you make of the charges.

Well, I don't think they were strong. If they got him, James, I think they got him on the Mar-a-Lago thing when they got them on this thing. Um, so I think the charges here are weak. Um, and the weakness isn't apparent because the indictment I think is teeming with a lot of deceptive behavior right so there's a lot of evidence which would paint trump uh in a very bad light and uh strober suggests that that everything he did was deceptive um but see the thing is i think there's been like lavish coverage about his state of mind over the last few days like what did he really know and could coverage about his state of mind over the last few days. Like, what did he really know?

And could you prove his state of mind beyond a reasonable doubt? And did he really, you know, Bill Barr's out there, for example, saying, you know, he absolutely knew he was lying. I told him that there was no election for him. So that's all very interesting about Trump's state of mind. But the thing is, in a criminal case, you don't get to the guy's state of mind unless you can prove that he committed a crime. You know, putting the putting whether he did it intentionally and knowledgeably and all that stuff to the side, whether the acts that they've accused him of make out a violation of law. And I think the problem that Smith has is that what he has charged either are not actually crimes, and I'm speaking there about the fraud count and maybe the obstruction count, or are crimes, but they don't fit this particular fact pattern. And that's obscured by the factual recitation in the indictment, which is, you know, obviously it's immense and it paints Trump in a

very unflattering light. But I don't think that the fraud count, and this is a favorite of creative prosecutors, this charge of conspiracy to defraud the United States, I don't think that the Supreme Court would allow it, if the case gets to the Supreme Court, to be applied to political corruption. They've been very clear that fraud in the united states in federal law is a deceptive scheme to build somebody out of money or tangible property they said that in two cases involving uh cuomo's uh andrew cuomo's uh fronies uh chiminelli and percoco uh in the middle of may which is why i said at the time i thought that that would be sort of the shot across the bow that might make Jack Smith fold his tent on the election interference stuff. He's going with an interpretation of the defraud the United States statute that the Justice Department likes and has always liked because it enables prosecutors essentially to criminalize things that Congress has never enacted in a criminal

statute. But the court has pretty much warned the government not to do this sort of thing, and he's indicted into the teeth of that jurisprudence. So we'll see how that goes. The obstruction counts, I think, are problematic because everybody is allowed to try to influence Congress, including the president. The question always when you try to influence a tribunal is have you done it corruptly? And corruption is a term in federal law that, much like fraud, is one that has been extended in a very elastic way to cover a lot of conduct that could be constitutionally protected conduct. So there's always a dispute about what do you have to do to make out corruption? And is it so vague that you should just get rid of the law entirely? And I think he's going to run into that problem because a lot of what Trump did is constitutionally protected activity. And you have some judges in the DC circuit who've taken the position that

unless you do something that is traditional criminal corrupt behavior like witness intimidation or document you know evidence manipulation um that that doesn't meet corruption and the theme here i should i should stress is that as as justice scalia among others uh said, I think Scalia said it best, it's a bedrock principle of the criminal law that criminal statutes have to be sufficiently clear that a person of ordinary intelligence can understand what the law prohibits. So if you get these loose concepts in statutes like fraud and corruption. There's a divide in the court how to handle that. Some judges think you should just invalidate those statutes in toto because their presence on the books chills people from acting in manners that are protected by the Constitution. Other judges prefer what they call limiting

construction. So, for example, Congress tried to enact a fraud statute that would extend fraud to this concept of honest services fraud, the idea that you have deprived people of their right to honest services. The Supreme Court ended up saying that that is too vague. It's not clear where that obligation comes from, who it applies to, et cetera. So they, instead of throwing the statute out, which Scalia and a couple of other justices on the court wanted to do, what they did instead was do what they call limiting construction. So now that statute only applies to bribery and kickbacks. So fraud in the United States, as far as I understand it, is applicable only to financial crimes, either stealing money or tangible property or bribery and kickbacks. But it doesn't apply to, as they've said,

it's not a vehicle by which prosecutors are supposed to impose somebody's idea of what good government looks like. And if Congress wants to do that, they've said Congress can enact a statute like that as long as they are clear about it and they don't do it in a vague manner. But it's not licensed for prosecutors to sort of freelance as lawmakers in the penal law. So I think he's going to have big problems with those counts. And I'll just say quickly, the last count, because there's been a lot of talk about this already. The last count is a civil rights count and it invokes a statute that was enacted in the post-Civil War period which was designed to combat the use of force specifically by the Ku Klux Klan preventing, you know, violently preventing Black voters from

exercising their right to vote. And that's the statute that he's trying to bring to bear in this situation. He's got one Supreme Court case from the 60s that he's relying on for this, which is a ballot box stuffing case, also removed from the facts of this case. So I think the modern textualist Supreme Court would not even approve what the court did in the 60s, applying that statute to ballot stuffing. But I don't think they have to invalidate it in order to just say, look, this doesn't apply here. Because even if the ballot stuffing rationale is colorable, that is directed at the act of voting whereas what is involved in the case with trump is after the fact uh challenges to the voting uh which would have the effect of canceling out votes but it's not the same thing as ballot box stuffing so i i just think legally all four counts are um

they have big trouble with them so andy just so we're clear here because i've seen people conflating these two questions in both directions trying to hang one on the other what we are discussing here is whether or not what trump did was a crime. But we're not discussing whether or not he did it. What Trump did was to try to rewrite the Electoral Count Act and the 12th Amendment to empower Vice President Pence to overturn the results of the election and make Trump president once again. That's not really at stake. What is being debated here is whether there are statutes that support this because I've seen people say, essentially, well, we know what Trump did was terrible. I agree. And we know January 6th

happened. I agree. Therefore, he should be charged with a crime, which is a non-secretary but i've also seen people saying or implying if this isn't a crime if this is intrinsically political if there's no statutory basis for it if the definition of fraud has indeed been narrowed by the supreme court such that this behavior falls outside of the law therefore trump didn't do anything wrong. That's not correct, right? Right. It would mean he didn't do anything that was prohibited by the criminal law, but there are a lot of things that are not prohibited by the criminal law that are wrong. And I think, Charlie, though, you also hit on something, which is a point I've been trying to make about the political nature of this. I think what's going on here, in part, is that they are trying to

use the criminal justice process as a proxy for the failure of the political process to hold Trump accountable. All the things that Charlie just laid out are indisputable. He did these things. There's no doubt that there are high crimes and misdemeanors, but you don't have to have a criminal offense in order to have high crimes and misdemeanors. What Hamilton, for example, in the Federalist Papers talks about is high crimes or impeachable offenses as what he called political offenses, by which he meant profound abuses of the political power that's allotted in the Constitution. And, you know, the fact that Smith does not have a crime that he can easily apply to Trump's activity, I think is a feature of the system, not a bug.

I don't think this is something people forgot. Like Congress just, you know, in some oversight, in almost a quarter of a millennium, they haven't enacted criminal laws that would put the Justice Department and the FBI monitoring elections. I think that's intentional. And the way the system is designed, presidential abuses of power are supposed to be checked by Congress, not by the criminal law. So I think that's the main problem that Smith has. Can I ask a very brief follow up on that exact point? I read through the indictment, and I read the debate between the editors at National Review and Noah Rothman and you and Noah Rothman and some of the criticisms of National Review's editorial and it struck me and correct me if I'm wrong that a creative prosecutor under this theory even with the

narrowed conception of fraud could bring a case against an out-of-office Joe Biden for his student loan order. Because you could argue as here, and again, Andy, correct me if this is wrong, that Joe Biden tried to defraud the Treasury. He tried to gain a pecuniary advantage from the Treasury by misrepresenting a law. Now, usually you would say, well, that's a political question. But I suppose the argument against

this indictment is, well, so is this. Is that a fair analogy? Yeah, I think that's right. The way they would put it would be to say that he engaged in a deceptive scheme that undermined an essential function of government to wit Congress's ability to budget. And you can see how dangerous this is. I mean, basically, in fact, during the Mueller investigation, Andrew Weissman, this line of reasoning is very popular with progressives in the Justice Department who like to use the statute in order to impose their own visions of good government. Just like, for example, they used the civil rights statute defrauding the United States. And the scheme was that by failing to register as a foreign agent, he undermined the ability of the government to have a comprehensive, accurate registry of foreign agents. Now, if you wanted to have a statute like that, I mean, we do have a Foreign Agent Registration Act. But if you wanted to turn it into a conspiracy, you could you could enact a conspiracy. Right. That says, OK, so since we're coming up with analogies, here's the one I came up with yesterday.

Barack Obama tells me, told me a bunch of years ago, if I like my doctor, I can keep my doctor. At the time he said that, he knew that was not absolute. That was not possible under the Affordable Care Act. They acknowledged later that it was kind of a lie to get the thing passed, which to basically nationalize a gigantic part of the federal budget and the federal government, the entitlement programs etc was he defrauding the government and the people of america well i guess it depends on who we said it to rob so you know to me example well right but trump is in charge even even smith has not gone so far as to say that lying to the public is a crime. I think he's close. Very close to it.

Go ahead. Just clarify this stuff for me because I know you must be really tired of doing this because basically what you do when these things happen is you have to go and painstakingly explain to people what it really means. There's a huge amount of pushback on this,

which is basically, and I think that will be the part of the Trump defense. It's like, Hey, Hey, Hey, you can say anything you want. It's first amendment.

Right. And then the second part is what you said, isn't really relevant, which is, was interesting to me was that, well, it didn't matter. He knew that what he was saying was false and he was lying so that he

could remain in the White House. So his mental state, at least in the indictment. Is actually part of the indictment, when I read it, his mental state was important. Jack Smith thinks it's important, but you're telling me it's not. Well, let me try to put this in two different buckets because it raises two different concerns. Right. So. Well, that's me, you know, I'm very complex. I'm a complex thinker. Yes. And you require so much nuance.

Yeah. You're going to work. Yeah. Yeah. So, you know, I used to organize crunch cases and if the, you know, if the Don's in the, in the clubhouse with a bunch of the guys and they're deciding, like, what are we doing tomorrow? And he says, I want that guy whacked. I never once in all the years I did mafia cases heard a First Amendment defense where a guy came in and said, I was just exercising my right to free speech. So the way that we usually prove conspiracy and the way that we prove criminal conduct is by speech as much as anything else, because it conveys not only, it not only results in action, it also conveys what people's intent was when they acted. So it's long been a doctrine of law that there is no free speech prohibition on the use of words as evidence. What the criminal law

prohibits is, or what the Constitution prohibits,, in almost every context, making statements criminal per se, like just for the fact that you say them, the fact that you say words, making that act a crime. But to the extent that the acts either trigger action or they convey somebody's intent, they are admissible as evidence if you can show that they are evidence of a crime. So for example, I heard Bill Barr on CNN say, try to make this point, but he makes it in furtherance of the idea that the statute as it's been interpreted by the fraud statute, as it's been interpreted by the Justice Department to prohibit deceptive schemes that undermine essential functions of government. What he's saying is that if you have speech that shows that,

that that's not a problem. And I think it is a problem, but I don't think it's a problem because you're using speech. I think it's a problem because it's not a crime. The other bucket here is constitutionally speech that is used politically or in a political context or in an electoral context, there's obviously a higher interest in the Justice Department and the government generally not using that speech to prove crimes unless the crimes are very serious. And this more gets into, I think, probably prosecutorial discretion than any strict legal prohibition. But the Justice Department ought to stay out of electoral politics unless you have a very clear crime that's supported by very convincing evidence. If you don't have that and you're doing what I think

Smith is doing, which is trying to jimmy something up in a way that puts a damper on people's ability to participate in electoral politics, that's a real problem as far as constitutional laws go. Can I ask just one more question? I know James wants to get in. So just to go back to the Mueller reports that you mentioned, the Mueller report said kind of what people say it said, which is like he didn't do going to process, I'm not going to indict anyone for obstruction. Do I have that right? Well, it seems like people, yeah, people can argue about the Mueller report. Those of us who say, well, the Mueller report proves that this whole thing was a put up job. And then the people say, well, no, it doesn't, remember? Because there was that obstruction. Is that, am I misreading that? He didn't find obstruction. What he said was that he couldn't, he wouldn't answer the question of whether there was obstruction or not.

And it was a complete weasel move by Mueller. What he said, which was precious, was that it would be it would be bad to to make a finding that he had committed obstruction because under Justice Department guidelines, you can't indict a sitting president. So it would be like indicting the president without indicting him and putting the stain on him in the court of public opinion when he doesn't have a trial venue to go defend his honor. And by the way, here's 200 pages of what he did. So in the end, what happened was the whole concept of accusing the president of obstruction of justice, if it's based on things that the president constitutionally can do, like firing the FBI director, is a wayward idea. So Barr and Rod Rosenstein, who were the AG and the deputy AG when Mueller filed his report, said, I don't know what we're going to do with this guy because it was already known there was no Russia collusion at the time he got the case.

So the one thing we actually need this guy for is to make a finding about whether there's obstruction here or not. And he won't do it. He basically abdicated. So they say, we're going to look at it. And basically, there's a lot of icky conduct here. But like if Trump is flying off the handle that he wants Mueller fired, or he wants Sessions fired, or he wants whatever he wants. That's all stuff he's allowed to do. And even if some subordinate, like a prosecutor, thinks that he took an action he was allowed constitutionally to take for a corrupt reason, it's not obstruction. So they looked at it and said, there's no obstruction. Okay. So special prosecutor Andy McCarthy, does he indict Trump for the January 6th stuff? No. Taking Trump out of it, Rob,

if a prosecutor, when I was a boss in the US attorney's office, if a prosecutor brought me an indictment that was based on a theory of fraud that the Supreme Court had slapped down like five minutes ago, I would tell him that he needed to get caught up on his reading, you know? Okay. So I think that's what he did here. Special prosecutor, special prosecutor, Andy McCarthy walks through the hotel buffet of the, you know of the brunch and all the tables are out there. He can choose any one of these Trump cases or a future case he wants to take and to make your be successful with. Which one do you like? Which one would Andy McCarthy think this is going to be easy? I can I could go home at four. I think the Mar-a-Lago case is that case.

Now, I don't think it's going to be easy on the prosecutors who have to do it only because I've been through a couple of these classified information and procedure act litigations. It's called SEPA. And these are, they're in, they their resource intensive prosecutions because they feature what I would call like a pretrial trial of the trial. In other words, before the case goes to the jury, I've been asked like a number of times, do you have to get clearance for the jury in the Mar-a-Lago case? The way it works is you have to litigate prior to trial what classified evidence is admissible. And then once you figure that out, the court tells the government you have to declassify this stuff. And if they don't want to declassify it, they can propose a substitution that puts the defendant in the same position to make whatever arguments that he would otherwise

make to the jury, but withholds methods and sources and that kind of stuff. That's not always practical to do. So it's the one weird area of law where the law allows the attorney general to order the court not to allow admissible evidence into the case. But while the government, the executive branch is the master of classified intelligence, the court is the master of the legal proceeding. So if the attorney general orders the judge, don't let this admissible evidence in, the judge can't let the evidence in, but the judge can dismiss counts in the indictment that the evidence is relevant to, or dismiss the whole indictment if it comes to that. So that takes a long time to do. We had a SIPA litigation in the Blindshake case that,

you know, I mean, it wasn't the only thing going on, but we litigated it for about a year and a half. I had a real problem getting information out of the CIA. It was all about like, what were we doing in Afghanistan? And who was our cutout and all that stuff. But after 18 months, I think at the end of the rainbow, I ended up reading a nine line stipulation to the jury at the end of the case. So it's a lot of work for what sometimes is very little at the end of the rainbow. So that part of it is going to be resource intensive. But the actual case, I don't think is a hard case. I mean, I just think it's a pretty black and white violation of law. And it looks to me like the evidence has gotten stronger over time.

Speaking of cutouts and pro-Russian members of Ukrainian oil companies, gas companies before Maidan revolution, what are we looking at with Biden here in terms of legal trouble? Can you see the will or the means or the actual case for impeaching him now? Well, I think there should certainly be an impeachment inquiry. I heard and I agreed with Charlie before I came on that there's obviously more evidence here just to justify an investigation. I think there's more evidence here than what they actually impeached Trump for the first time, you know, the actual articles of impeachment, where, if you remember, in the Ukraine impeachment, they had to call it, I can't remember, was it called abuse of power? But the reason they had to call it whatever they called it was they couldn't come up with a penal crime that he had committed. So here, you know i think you have a lot more evidence and um if the paul

manafort case is the model and that's the the closest thing i can think of that that comes to what you know hunter and company were up to you know they charge that as a tax case of money laundering uh failure to register as a foreign agent, et cetera. It's Al Capone stuff, right? Yeah. Well, it looks like there's evidence of real crimes. And when they bring money laundering in, money laundering has very heavy penalties because it's customarily associated with organized crime and drug trafficking.

So for that reason, it's got very high penalty structure. So these are real crimes. As to Biden, you know, it looks like the Constitution says that you can be impeached not just for high crimes and misdemeanors, but for treason or bribery. And a lot of this looks like bribery. So, you know, I don't want to get ahead of what we know, but like there's pretty significant evidence of bribery here. Right. I wish Al Capone had taken up painting. You know, he'd become a cubist painter and started selling all of his work to launder his money to people who wanted to, you know, the whole dodge that we have with Hunter Rennazar. Just imagine all of the great crime families, all of the Dons, all of them taking up painting. The stylistic uh

wasn't hitler wasn't hitler a painter yeah and uh a mediocre one really and a vegetarian too let's but a dog lover i'm glad with god went all the way here you know to end up maybe on a on a gaseous note because i all my questions have been answered here, pretty much. It's interesting that you and Rob, and probably Charlie, take refuge in this charming thing that you call constitutionality. I mean, yes, I too share your concern for the founding document and the preservation of it, but we have a new generation and we have a party that is increasingly disinclined to believe that free speech is as absolute as we'd like. As a matter of fact, it's the government's job to protect us from misinformation and

from hate speech and all the rest of those things. It seems to me that even if there's no there there when it comes to criminality on Trump's part, the fact that he said lies is almost enough now to justify a criminal investigation. I mean, when Charles was saying, Rob was talking earlier about the Obama statement about the your doctor. I mean, at the time, yeah, politicians lie. We accept that it's built in, it's baked in. But now it seems like we're getting to a point that politically you have a party that would certainly like to prosecute somebody simply for lying because the end result is hateful. When Charles mentioned, could it possibly be that they would go back and get Joe Biden for unconstitutional lifting of the student debt? Well, no, because that was a good thing. His heart was in the right place. The objectives were altruistic.

Do you see us actually drifting into a place where this sort of political, intentional desire to criminalize statements is where we're getting to. Yeah, I think we're there already. And I think the more dangerous thing is the criminalization of the things that you say that are true. Anybody who says things that are untrue, if you're saying them in a legal context or in a financial context, you're probably on the border of fraud or false statements that are actionable and that sort of thing. So false statements is one thing. But what I worry about is true statements. And I started to complain about this during the Obama administration when they co-sponsored, I think with Turkey and Egypt, a U.N. resolution that wanted to make it a crime and impose on every country the obligation to enact in its criminal code.

A prohibition against speech that would cause hostility to religion. And it was clear that there was only one religion, obviously, that they were talking about. But, you know, they had a lot of other stuff in there, too, that you could legitimately criminalize. But if you just parsed it down to that, you can't criminalize speech that would cause hostility to anything in American law. And yet, the Obama administration tried to sort of end around the Congress by signing on to that with a bunch of countries and then try to, you know, the same way they did the Iran deal, not not go through the treaty provision, not go to Congress for enabling legislation. Basically, make a deal with a bunch of countries and then impose it as if you could do it by customary international law or something along those lines but there were the left was all in on this idea that you could criminalize that speech and what the what they wanted to go after were you know for example people like the same people who got purged um from their gigs as fbi lecturers because they were teaching people about the

history of jihad and what its roots in Islamic doctrine was. All those things they were saying were true, but they wanted to outlaw them in the interest, not humiliating Muslim countries or not upsetting them. And mainly, it was like, a lot of it was like Heckler's Veto, kind of stuff where, you know, it's now supposed to be your fault if you say something that makes somebody else violent, right? Rather than their fault that they're violent, irrationally. So I think this has been, you know, that goes back to 2008, 2009. So we've been there for a long time. It's just snowballed. And I think it's become one of those things where it's like, you know, it's just what, what did they say about bankruptcy? Like, how did you go bankrupt? You know, well, it was over a long time and then it was all at once.

It seems to be like. It seems to be that we're there with this stuff. You could see the seeds of it going along over the last 10 plus years, but I think it's really hitting us over the head now. That's a Fitzgerald quote, I believe. How did

you go broke gradually then suddenly? Charles, you had something to ask? I do. i have a final question that i've been wondering about for a while andy what is the limit on what you can be prosecuted for in conversations with a lawyer so one of the defenses that i've seen against this indictment is it's not a crime to follow bad legal advice. So if you go back to the Trump administration, I remember there were some progressives who wanted to prosecute him

for a conversation he had with Don McGahn. If I call up my tax lawyer and I say, what would happen to me if I didn't pay any of my taxes? It's not a crime for me to ask him that question, obviously. But if I call up my lawyer and i say i'm thinking of blowing up my local wendy's like you know would i get prosecuted for that and then he says no you wouldn't and then i go and do it i can't turn around to the court and say well my lawyer said that i'd get away with it right so you know wow i'm just just being prosecuted for

taking bad legal advice right no it's the blowing was the blowing up the Wendy's that did it. Like, where is the line here? Because there has to be some room, obviously, for people to say in good faith, look, I think the interpretation of this law is wrong. I mean, there are lawyers who for 50 years said Roe v. Wade was wrong. Obviously, that's not a crime. Where's the line? Yeah. So it's like the Seinfeld episode where he has sex with the janitor on the...

Was that wrong? Because if someone had told me, if there had been a rule against that... But I think the divide you're talking about is the one they always talk about between malum in se and malum prohibitum laws. There are certain things that are evil innately, and you can't get out of having the mental state for committing them by passing it off. My lawyer told me it was okay to murder that guy. That's, you know, you can't, but I think the more you have laws and especially regulations that now have, you have some regulations now that have criminal penalties attached to them. And even if they're not criminal penalties, they're heavy duty financial penalties as well. I think the more that you get into the area of things that we prohibit because we decide to prohibit them, not that are innately wrong, the better you have a defense that you relied on the people that we're expected to rely on, like accountants and lawyers, and they steered you wrong. Which one's this? Yes. I think, well, this is a different issue because I think with respect to with respect to Trump, what you have in the indictment lawyer is clever enough, I think he'll say,

the indictment itself shows that it's reasonable as far as the government is concerned to deduce what somebody must have known by what other people were telling him. Now, let me bring you the hundred witnesses that were telling President Trump things that the grand jury was never told. And, you know, they'll bring in a lot of witnesses who told them there was a lot of fraud. And, you know, the other thing, Charlie, that I would do if I were Trump's lawyers is, you know, Bill Barr could come in and say, I told him that was wrong. I told him these three fraud, fraudulent voting things that he was relying on were wrong. They'll bring in a bunch of people who told them that. In connection with the Pennsylvania case that the Supreme Court refused to take about whether the court and the election

officials had the authority to change the statutory rules in Pennsylvania, Clarence Thomas wrote a dissent when the court wouldn't take that case in, you know, look, we need to take these cases before the election, because if you wait until after the election, the time is too compressed. There's no reasonable way that you can figure out, investigate and litigate whether there was fraud. And I think what Trump is going to say is, you know, whatever everybody's state of information was in December, say early December when I spoke to Barr, look at all this evidence we now have that the election was stolen. And one of the things his lawyers have been talking about is the fact that for the first time, because Jack Smith has indicted him, he now has subpoena power. So for the first time, he can go out and actually use subpoena power to investigate what he says was the election fraud of 2020. And I think they're going to try to

litigate that in this case. I got one. I just got to ask you one question about this indictment in general, right? If you were looking at all the bits and pieces of it, isn't the certification of the false electors the strongest case that Jack Smith has? You know, I don't think it's going to be that way, Rob, when it all when everything comes out. Now, maybe I'll be wrong about this, but I always understood. And I've read, you know, some of the things that have been said by the electors or the so-called fake electors in in georgia where their point is that they were contingent electors that they were signing on to be electors in the event that right and i think that's what you know now there's people in trump's camp who called them you know fake electors or whatever they call them. But I think this is one of these things

that actually reads better than it played at the time. I mean, at the time on January 6th, nobody thought those slates of electors were going to be effective. Yeah, it wasn't like they were kidnapping the electors and showing up with their fake ID. That's the only thing that was sort of in my head. I think that makes sense to me. Andy, we hope to have you back when the department of justice indicts ron desantis for fraud because his cowboy boot heels give the appearance of him being taller

than he is and this was a means of defrauding the electorate going forward i mean i'm sure they got there working up something anyway uh great to talk to you and hear from you and listen to you and get the analysis. As ever, we'll see you again and we'll see you on television and scattered about the podcasts and here and there. Thanks, Andy. Thanks, guys. Have a great weekend.

You too. We shall. We won't. We might have one of those weekends where we have somebody over, but you, the listener, could possibly have somebody over that you don't know yet. What did Will Rogers say? He never met a man he didn't like. What's the other line?

That stranger is just a friend you haven't met yet or some sort of, you know. I know they're both nauseating. That line, I never met a man I didn't like, I think is one of the most dishonest things that's ever been described. It's just BS. But anyway, now and then you do meet new people and you realize, wow, it's good to meet new people and you realize wow it's good to meet new people and that's where Rob

Long comes in not that Rob is going to show up at your door but he's going to tell you how you can have people show up at your door well you know James of course Ricochet is an online club you could join Ricochet you can mix it up in the comments mix it up on the member feed and the members lodge right

but you can also do we also meetups IRL meetups in real life You can mix it up in the comments, mix it up on the member feed and the members lodge, right? But you can also do meetups, IRL meetups in real life, as the people say. And the summer now is coming to a close. Our last summer meetup is in Cookville, Tennessee, Labor Day weekends. That's September 1 through 4 in Cookville, Tennessee. So if you're in the area and you want something to do, a bunch of Ricochet members are getting together in Cookville. That is always a good time. I highly recommend the meetups. If you're a member and want to go, go. If you're not a member and you want to go, join Ricochet and then go. If you are a member

or non-member and you're like, I don't know, Cookville's far away or Labor Day weekend booked and you want to set something up for the autumn, here's what you do. You go to ricochet.com, you join, you go to the member feed, the little members room, and you say, hey, how about a meetup here on this date? And I guarantee you, Ricochet members will join you. That's fun. I wish there was one here soon, too. I'm sorry, I was stunned for a second there when you said that summer is drawing to a close. More horrifying words.

But you know what that means, James? What's that mean it means nfl season is approaching yes there's that there's that there's that and we can we can we can look for that there's all these compensations and awards that life gives to us uh charles you said that you saw um oppenheimer rob i assume you've seen them both i've haven't seen either one yet. No, I saw Barbie instead of Oppenheimer. And I was wondering if either of you had seen Barbie, and apparently Rob hasn't. It's an important movie to understand the zeitgeist.

So, Charles, you're rushing off to it soon, right? You're painting your golf cart pink and heading off to the... I the, I take it. No. Well, you know what guys? No, James it's I was waiting to see where you were going with that. Yeah. Me too. I thought it was that a euphemism. I don't know. No, it was just a sort of thing, but you want to tell me now, even when it, when it shows up on, on streaming someday, you, you ought to watch it.

I think it's been profoundly misunderstood mischaracterized by a lot of people in the right online i think in one sense the movie is half an inch deep but there is so much there that you can ascribe to various schools of thought and interpretation and as such because it's made by fairly smart people it's an interesting cultural artifact and whether or not you think it is the wokest thing in the world, or you realize that it's got a lot more nuance built into it, the opening scenes of this movie are something that is more anthropologically profound than 99% of the stuff that was turned out in the year 2023. And not in a good way, mind you. And that's what

makes it interesting to me. So what you're telling me is that for the good of my own intellect and edification, I have to watch Margot Robbie for two hours. Yeah. Because I could do that. I could do that. You are willing to do that for your country,

then good. I will. Good for you. Yes, it is not... It's odd to say that a movie with Margot Robbie in it for two hours is actually hard on the eyes, but it is sort of hard on the eyes just simply because of the color palette and the rest of it. But to dismiss this as just some this this woke screed, I think, is a big mistake. No, I haven't done that. I just didn't have a great desire to see it because I'm not and have never been in. A great Barbie fan.

Well, this is the brilliance of it. I mean, here is something that has been derided for decades by feminists as being the epitome of the chauvinist patriarchal system that keeps women down and reduces them to their image. And all of a sudden now Barbie's hot. And in an ironic postmodern sort of fashion, it's okay to embrace Barbie and everything connected with it. It's fascinating. I mean, it's a great job by Mattel at repositioning themselves. And I, you know,

I look forward to the Jenga movie. That's inevitably going to fall. I'm sorry. Yeah. There's a Polly pockets move as a dad who went through, who saw these phases move through our own household and has his own relationship with Barbie. You know, I got to find the the hot barbie this year for christmas i have to get the game i have to hear that song again i have a different relationship with it and maybe that's

why i was curious but no don't uh put it this way if i had to say how i would want to spend three hours on a beautiful summer evening, I think Barbie and Margot Robbie would be preferable to Oppenheimer and IMAX. Although I do want to see that. No, you should too. Yeah, I'm going to see it too. Well, there we have it. There's your, we dig deep here when it comes to our cultural reviews.

Not that mainstream stuff. Now we're talking Barbie and Oppenheimer. Barbie and the bomb. Which is apparently the only movies that exist stuff now we're talking barbie and barbie and the bomb which is apparently the only uh movies that exist right now at this stage squeezing out mission impossible it seems to be in the public imagination which is supposed to be something of a pity since tom cruise our last our last action hero our last the last guy who seems really invested in a molecular level in the art of cinema who would have thought that back in the days of risky business? Anyway,

risky business would be you not following through with the promise we made at the top of the show, where you go and join Ricochet. Well, you forgot you made that promise. We did. We heard you. And also you promised,

you promised to go to Apple where the podcasts are and give us five stars. Cause that would be great. Wouldn't it? Sure. But you know, here's the thing. and give us five stars. Cause that would be great. Wouldn't it? Sure. But you know, here's the thing. Ricochet 5.0 is right around the corner and you're going to love it so much that you don't want to comment over and over and over about the magnificent design and the brilliancy of the men who have stood of the people I'm sorry, who have steward stewarded this into being. So you got to join, you got to have a little skin in the game, as Rob said

so many episodes ago, 652, I believe, in order to comment on Ricochet. That's what keeps it sane and civil, that the code of conduct, moderators, then a group of people who are really interested in having intelligent conversations and some fun nonsense as well. Gentlemen, I wish you a

good weekend. And Charles, it's been great as ever. Rob, regards to Gotham. We'll see everybody in the comments at Ricochet 4.0, but soon to be 5. Next week. Next week, fellas. Ricochet. Join the conversation.