BUCK: Mr. Andy McCarthy from National Review. We’re talking document redaction, affidavits. Take it away, sir.

MCCARTHY: You know, a couple things. One is, it occurred to me — even though this was just gonna be a big blackout thing — since they’ve been having this argument about special master, like Trump wants a special master to supervise the DOJ sifting through the privileged stuff, and DOJ doesn’t want that because they proposed procedures that they said, you know, protected those interests? I imagine they could… That’s the kind of stuff that they could reveal without… It wouldn’t tell us what we want to know, which is the probable cause and why did they think they needed a warrant?

But, you know, I could imagine they could reveal stuff like that without blowing anything in the investigation, like, without identifying witnesses and the like. And the other thing I would just say quickly is that I think we already know what the probable cause is here. You know, from the time this happened a couple of weeks ago ’til now, there’s been not only a lot of reporting — we got that letter from the National Archives dated May 10th earlier this week, which lays out a lot of what was going on up ’til that point.

Trump World’s Mar-a-Lago Offensive Backfires – my @NRO column … https://t.co/QhGFrZ2WCg

— Andy McCarthy (@AndrewCMcCarthy) August 24, 2022

And we already know from a lot of reporting a lot of what happened afterwards. So I just, you know, I had to do a timeline for my own purposes this morning, and it was amazing to me how much we know that went on from the time Trump left office until they did the search, and I’d be surprised… Looking at that, you could see why they thought they had probable cause. I don’t see anything about obstruction in there. But looking at that, you could see why they must have thought they had probable cause on, you know, classified information and document retention —

CLAY: Yeah, Andy, you can understand why they might have thought they had cause. But this is still the president of the United States, former the president of the United States.

MCCARTHY: Yep.

CLAY: And when you were signing off on this as Merrick Garland, you are crossing the Rubicon. This has never happened before. It is truly unprecedented. Based on what the New York Times and the Washington Post have reported — and there have been fairly detailed aspects of this — I gotta be honest with you, Andy. I am stunned beyond belief that Merrick Garland would have signed off on this warrant and undertaken this sort of legal battle. Based on what’s out there so far, are you also stunned, or does it make sense to you?

MCCARTHY: I’m a lot less stunned than I was in the earliest days of this, and let me explain why. They find out in early 2022 that there’s, you know, the top, Top Secret stuff is there, including special access program stuff and, you know, sensitive compartmentalized, the very Top Secret stuff, right? And they have this back-and-forth about getting it back. The Justice Department refers it to — I’m sorry, the Archives refer it — to the FBI. This will eventually result in a meeting at Mar-a-Lago in June where the meeting takes place because they’ve done a grand jury subpoena.

But now this isn’t just like a friendly conversation anymore, right? They’re now starting to use criminal law, government evidence-collection methods. And on June 3rd they had this meeting, they give them a subpoena, and they not only give them more classified documents — which means they hadn’t, obviously, turned over all the classified documents at this point; so, to the extent that the FBI suspected that they had, that was kind of confirmation that they hadn’t.

But they also make them give them a signed document from the lawyers that says we have searched the place and there is no more classified information. So after that, they start to interview people at Mar-a-Lago and on Trump’s staff, and one of the things they do on June 22nd is issue them a second grand jury subpoena asking for the surveillance video, you know, the security cameras, which apparently go back 60 days at some parts of Mar-a-Lago. And now we have to refer to reporting rather than, you know, what the government is saying —

CLAY: So, Andy, let me cut you off here.

MCCARTHY: Yep!

CLAY: Can you come back and answer a couple more questions for us?

MCCARTHY: Yeah, absolutely.

CLAY: Okay. Here’s the question that we’re gonna lead with when we come back: Does Andy McCarthy think there are gonna be criminal charges brought against Donald Trump based on what he has seen so far in this case? We’ll talk about that next.

BREAK TRANSCRIPT

BUCK: We got Andy McCarthy from National Review. And, Andy, I just want to get right to it. It’s essentially the “where is this all going?” question with the Mar-a-Lago raid. Clay just asked you before the break: Are we heading toward criminal charges of some kind against former president Trump and where is this going?

MCCARTHY: I don’t think they want to charge Trump with document retention offenses. One of the reasons I say that is, ordinarily in a criminal investigation, when you’re ready to do search warrants, you do that at the end, and usually the searches and the arrests are done the same day, because if you have probable cause for a search, you have probable cause for an arrest. My sense is that they want the documents back.

I’m not so sure that they want to get into the whole morass like the first prosecution in history against a former president over document-retention offenses. Now, the classified information stuff is serious. It’s more serious than I would have thought it was at the beginning, and we don’t know what the instruction evidence is, which, you know, depending what their evidence of that is. They say in the warrant that they have obstruction evidence, we haven’t seen it; so I’d like to know what that is.

But I’ve always thought that they are trying to make a January 6th case on him because if they’re gonna do something as drastic as actually indict a former president, they want to make sure that it’s over something that’s very, very serious, and I think Garland knows that. So my sense is that part of the reason that they’re fighting about disclosing the affidavit is they were hoping to get the documents back and then this whole thing kind of goes away unless they can make a January 6 case. But I could be wrong.

CLAY: So how much politics do you think goes in to making a decision like this? And the reason why, Andy, I’m asking is, to me this has made Donald Trump politically stronger.

MCCARTHY: Yep.

CLAY: And part of being a prosecutor is understanding what the likelihood is of getting convictions, not getting convictions. As you well know, discretion sometimes can be the better part of valor. Wouldn’t you have to consider the politics almost more than you would the law here?

MCCARTHY: Yeah, I don’t see how you could avoid it, Clay, for a variety of reasons. Like, it’s always seemed to me stupid for Biden to act like, “Ohhh, I had nothing to do with this,” when, you know, in point of fact, like, in order for the FBI to get access to Trump’s records, Biden had to approve that under the Presidential Records Act. If Trump tries to prevent them from seeing it by asserting executive privilege, Biden had to weigh in on that.

So it wasn’t like, you know, he’s reaching out. He’s required by law to be involved in this. And what they’re saying is, the critical thing here is the national security information. National security is the president’s most important job! So, yes, it’s all tinged with politics, but, you know, sometimes that’s the job, you know?

BUCK: And if they don’t prosecute him, though, Andy — we’ve only but about a minute — I’m just wondering, doesn’t it look like it was really heavy-handed to send in the FBI there to get back the docs?

MCCARTHY: You know better than I do. It really depends on how serious that classified information is. I mean, they could have had really bad stuff down there that they shouldn’t have had and they needed that back. I don’t know.

BUCK: That’s a good point, Andy. I also feel like, why would Trump or anyone who works for Trump want that stuff? Like, there’s no value to such stuff for them to have.

CLAY: Also, for people to think about, why would it be important for the Archives to have it? Thank you for the time, Andy McCarthy.