Andy McCarthy’s Analysis of the Special Counsel Wars

BUCK: We got our friend Andy McCarthy with us now, of National Review. He’s a Fox News contributor, Southern District of New York, federal prosecutor for over 20 years. Andy, great to have you back.

MCCARTHY: How are you guys? Happy New Year.

BUCK: Happy New Year to you, sir. Great to have you here. And let me just start with this, Andy. I mean, what the heck happened yesterday? How surprised were you that Merrick Garland announced that there had been this special counsel appointment looking at a Democrat?

MCCARTHY: Well, I think, Buck, that he played politics with the appointment of a special counsel for Trump, which was completely unnecessary. The only reason for doing…there’s nothing inherently conflicting about the Biden Justice Department investigating Trump and the fig leaf that, like the fact that he announced that he was a presidential candidate somehow changed things was ridiculous. But he did it because he wanted to create some distance between himself and Biden. For what? Look, at that point, like the certainty that Trump was going to be charged in connection with these classified documents.

Well, you know, he looked ridiculous doing it because for two years he hadn’t appointed one in what they like to call the Hunter case. But what I call the Biden investigation, which is what it ought to be. And then, of course, when this thing emerged, he really didn’t have any place to hide anymore. So, I think it’s to this guy, John Lausch’s credit that he looked at this thing in a preliminary way and looked at the regs and said, look, you know, there’s an obvious basis to believe a crime was committed here.

And there’s a profound conflict of interest in the Biden administration and the Biden Justice Department trying to investigate President Biden. You know, we’ve had history where some people haven’t made that call, even when it was an easy call to make. So, credit to Lausch for making it. And I think Biden gets some credit for going along with it. But I think it was really, his hand was forced by his own playing politics with Trump.

CLAY: Okay. So, Andy, I appreciate you coming on. You’ve been killing it on all your analysis. Buck and I have basically… what I believe is going to happen is — we have a little bit of a disagreement about how exactly it will go down — I think at some point in the summer, Merrick Garland will come out and wag his finger and say, this is probably crimes by both Trump and Biden. This is evidence of how we need to take classified documents more seriously.

But I’m going to use the reasonable prosecutor standard, the complexities associated with privilege claims and everything else. And I’m not going to bring criminal charges against either. That’s my prediction. Do you buy into it? Part one to that idea. Part two. Do you do you buy into Biden basically killed the classified document investigation of Trump by his own incompetence. How would you assess where we are and where we’re going?

MCCARTHY: So, I don’t think those things are mutually exclusive. I actually think they’re both true. I agree with you in a bottom-line sense. I do think that what they’ll ultimately say is that neither of them gets prosecuted. But I think what Garland will do is not connect the decision together because that will look like it’s a political calculation. So, I think, Clay, that you’re right, that that’s where it ends up. But what I imagine he’ll do is he’ll say that Biden’s offense was easier to decide than Trump’s because, you know, Trump’s was so much more serious by degree, blah, blah, blah. And he’ll cut Biden loose first. He’ll make Trump dangle for a while. And then, ultimately, you know, they’ll drop the Trump investigation, too.

CLAY: Okay. Building on that. Buck and I were having this conversation. You’ve probably spent some time contemplating these. These special counsel investigations can expand, right? Obviously, we saw Whitewater for Bill Clinton turn into an affair with Monica Lewinsky. We know that right now the Trump special counsel is considering both the classified documents and also simultaneously all the January 6th related concerns. How would a special counsel handle two divergent path cases?

Can the special counsel in that case come out and say, “I’ve resolved the classified documents investigation; here’s one half of what I’m doing”? And as a part of that bigger question, what happens if this guy, Robert Hur, who you may or may not be familiar with — I’m curious if you are — what if he suddenly says, “Oh, boy, this connects to the Ukraine issue with Hunter Biden. This classified document case is not just about documents in the garage beside the Corvette. It’s actually about far larger issues.” How do these things get resolved? How would you contemplate them?

MCCARTHY: Well, to begin with, I don’t know Hur. I think he’s got a good reputation, but I don’t know him at all. I’m willing to, obviously, like all of us, you know, let’s see how he performs. As far as this plays out. I’m pretty cynical about this, so I think it’s very interesting that Garland gave a wide mandate to the Trump special counsel, basically telling them, we’re not going to interfere with you at all. You have the January 6 case. You have the documents case. And if anything else comes up along the way, you know, have at it. And with Biden, from what I can detect, it’s a very narrow avenue of investigation where he’s supposed to be confined to the classified documents.

And presumably he would have to, if he stumbled on another crime as he was investigating, he’d have to go back to the attorney general to get expanded authority. And the reason I underscore my cynicism about this is there’s also a reporting play in the last couple of days that they’re probably about to take a tax plea from Hunter Biden, which would involve a couple of tax years. It’s not clear whether they’ll throw in a false statement on the gun application. But I have a feeling that they’re going to say there’s no reason to expand the authority for the President Biden’s special counsel because the Hunter Biden case is a closed matter. You know, we took the plea from him and that’s done.

BUCK: So, Andy, that’s what I think, that they’re going to close that one pretty quickly. Keep it very narrow, keep the Trump thing going. And, you know, and that’s been my assessment as of today. So, I agree with you on all that. But on the question of charges against Trump, is it basically, you know, from what you’re seeing here, because Clay and I are both sensing, to bring a document charge against Trump, even an obstruction charge in relation to the classified documents. I don’t know. I don’t know if that dog will hunt. Right. I don’t know if that’s going to work. Does that mean that there’s in your mind there’s… first of all, do you agree with that? And then also, do you think that that means that there’s unlikely to be any actual indictment of Trump, or do you think they still might go for something?

MCCARTHY: Yeah, I think, you know, look, it’s very important to the left that Trump get charged. And you know, a week ago, if you had asked me this, I would have said on a scale of 1 to 10, it’s an 11 that he’ll get charged on the Mar-a-Lago documents. I thought they were just waiting, you know, for an opportune time to do it. Now, I think the documents case has blown up, and I think you guys have probably noticed this as much as I have, the Democrats rhetoric in the last three days has become very interesting.

They’re not talking about document retention anymore. They’re talking about obstruction of the grand jury and subpoenas and all that. So, they’re trying to, they’re trying to change the Mar-a-Lago investigation from the same conduct that Biden right now is in the trick bag for and turn it into something different. Like, you know, Trump is qualitatively different because he lied to the grand jury or he, you know, he flouted the subpoena, whatever you want to say. I don’t think, for the reasons you just suggested, I don’t think that’s going to work because in the public mind, that’s a classified documents case.

And that I don’t think is going to change. But what I think is likely is they’ll redouble the efforts to make a January 6 case, which, by the way, I think on its own would be a travesty because the Justice Department’s taken the position in the 900 cases that it’s brought against January 6 people, that Trump is not involved, actionably in the violence of that day. So, the only way you can make an obstruction of Congress case on Trump is if you criminalize John Eastman’s legal theory. And I think if we’re going to go down the road of criminalizing a legal theory, when I was a prosecutor, you know, defense lawyers are very creative folks.

I could have indicted five people a day for frivolous legal theories. I just think that would be an insane thing for us to do. And I hope Garland is, cares enough institutionally about the Justice Department that he won’t go down that road. But I do think if the documents case is blown up, they’re going to be looking at January 6th again. And, you know, they have all that pressure from the January 6 committee. Right. They put all that stuff out very theatrically at the end about like referring stuff to Congress and claiming that he committed a bunch of felonies.

CLAY: And by the way, Andy, I’m glad you brought that up about the legal rationale that was floated out there. Remember, in the omnibus, and it didn’t get a lot of attention, but they spent $1.7 trillion. They also tried to clean up the legal loophole as it pertains to the arrival of the electoral votes in terms of what the vice president’s role is. To me, if I’m defending Trump, I’m saying, well, there has to be some ambiguity if the United States Senate and the House both said, “Hey, let’s clean up this mess so we don’t create another January 6.”

It may not be a great legal argument. But there are, as you well know, lots of really bad legal arguments that are trotted out there in defense. The fact that they tried to clean that up, I think is actually huge for Trump, and I haven’t seen anybody talk about it. But I wanted to go back to this independent counsel. We’re talking to Andy McCarthy. You watch him on Fox News, former prosecutor. He does an incredible job laying out a lot of these details. If they were going to go after him on January 6th. I think you’re right.

That’s what Buck and I have said, that they now basically don’t have a really good route on the classified documents. What do you think Merrick Garland’s reaction was when he found out that Joe Biden had his own classified document scandal? Like what? You’ve been in the room sometimes when you get information you don’t want to get. On November 4th, when suddenly Merrick Garland finds out, he thinks maybe he’s got a case to be made. Not that difficult, against Trump on the classified docs, I bet. And suddenly Joe Biden just trips and falls all over himself right into this mess. What do you think his reaction was?

MCCARTHY: Well, you know, I go back to what Barr called his memoir, One Damn Thing After Another. And the upshot of it is that like several times a day, if you’re the attorney general, what comes to you is like these things that just go, like, everything that could conceivably goes wrong goes wrong. And the other thing is anyone who either knows of the career of Joe Biden or has spent any time around him can’t be surprised when something like this happens. I mean, I wrote about this yesterday.

This, to me, this is just a classified documents iteration of Biden’s career. Right. There’s nothing if you followed, you know, the plagiarism and then the inflation of his resume and the stupid things he says and the being wrong on every major security and foreign policy issue for 40 years, the one word that does not scream out when you think about this guy’s career is careful. Right? So, how surprised can we be that something like this happened? And I actually think we even have a pretty good theory for what happened here. He wrote a memoir in 2017. Right. The first box that they say they discovered had information in it about Beau Biden, including the funeral and a lot of the classified documents, apparently, were part of his, you know, pertaining to his foreign policy portfolio in the Obama administration, Ukraine and Iran and the U.K.

So, what’s the memoir about? The memoir’s about Beau Biden and his tragic death interspersed with Biden’s foreign policy portfolio in the Obama administration? So, how crazy would it be to imagine that he was writing a memoir and he was using government documents to try to, you know, get his get in order? You know, it seems to me like there’s a pretty rational explanation for this. Now, they can’t come out and say that because then it means that he intentionally knew that he had these documents in places he wasn’t supposed to have them.

So, their story and this is, again, is probably based on Biden’s background, is he’s clueless and he doesn’t know why he has them. And it’s like the documents walked into his office and his garage and every place else by themselves. If you’re Garland and you’ve been watching this guy and working closely with him for a couple of years and you knew him. Garland’s been in politics, in the law, at least for a long time. He was a high official in the Clinton administration. I think Biden was on the Judiciary Committee when they put Garland on the court. So, you know, he knows who Biden is. And am I sure that when he first heard this, he went, “Ugh.” Yeah, I’m sure he did. But like, how surprised can you be?

BUCK: Yes, that’s what we’ve been saying. I think this is people are thinking this is a big scheme, Andy, to get rid of Biden. I think this is another Biden lightning strike of stupidity. I think that to me seems like the more plausible place.

MCCARTHY: Do you think both of those things can’t be true, though?

BUCK: I mean, no. Well, that’s —

MCCARTHY: Somebody had to drop a dime on them, right?

BUCK: Well, see, we are like literally… we got like, no time, Andy, before we have to go to a hard break. But, real quick, why didn’t they just get rid of the documents right away?

MCCARTHY: Yeah, it’s very intriguing. We need to find out how this got reported to the FBI. I mean, it’s just very strange.

BUCK: Yes. Okay, well, we’re going to focus in on that. We totally agree. Andy, thank you so much for being with us.