Andy McCarthy’s Theory on How the Bidens Could Skate

BUCK: Our friend Andy McCarthy with us now. He is at National Review, also a Fox News contributor, and spent over 20 years as an assistant U.S. attorney at the Southern District, the mighty Southern District of New York. Andy, thanks for calling in. Andy?

MCCARTHY: Buck.

BUCK: There he is! Good to have you. So, tell me this. I’ll start with one of the big ones, then we can get into some of the details. Why shouldn’t there be a special counsel assigned to look into Hunter Biden and possible corruption and payment to Joe Biden, whether he was vice president or whatever? What’s the case for, what’s the case against?

MCCARTHY: Well, the case against — which I’ve made any number of times before I was radicalized by the intolerable double standard on this, and I say that, Buck, simply because we all that know if Biden were a Republican, there would have been a special counsel, like, three years ago, right? But the good reason not to have one is that the institution is a pernicious institution, that is the institution of the special counsel.

It doesn’t function like an ordinary prosecutor. It targets one target. Most prosecutors, if they don’t have time to make a case, they close the file and move to the next case. Special counsels notoriously, you know, spend too much money and too much time and they generate a lot of process crimes. Those are crimes that are caused by the investigation instead of the crime the investigation is meant for. So there’s a lot of downsides to it.

And, you know, to the extent that people delude themselves into thinking that special counsels are independent, they’re not. They report to the Justice Department because in our system, ultimately prosecution is a executive responsibility. So they have to report — in order to be constitutional, they have to report — to the attorney general and ultimately the president. So those are the downsides.

The upsides are there’s a regulation that the Justice Department is bound by, and you can say it’s a good regulation or a bad regulation. The fact is it’s a regulation and they’re supposed to follow it, and it says that anytime the Department of Justice has a conflict of interest in a case where it is in the public interests to have an investigation, you’re supposed to have a special counsel.

And we’re dealing with a situation in which the Biden Justice Department is investigating the Bidens. And I think one of the real downsides here is people should stop referring to this as “the Hunter Biden investigation.” Hunter Biden and his taxes are the least significant element of this investigation. And we already know that a number of the Bidens are involved in it.

That’s not saying that a number of the Bidens are guilty of felonies. I haven’t said that but certainly their conduct is obviously part of what’s being investigated here, if the public reporting is accurate that what the Justice Department is looking into are these streams of payments from foreign sources, including regimes that are hostile to the United States, millions and millions of dollars that went into the Biden family coffers.

BUCK: Andy, what about this investigation — ’cause I think we can both assume safely that the Biden DOJ is not going to.. (chuckles) It’s not going to assign a special prosecutor to look at Joe Biden’s possible felony activity with regard to his son or any of that, right? Is it safe to say you think there’s no chance of that?

MCCARTHY: Well, I think there’s very little chance of that unless there’s a significant change in the political climate, including if the Democrats decide that, you know, Biden’s a lost cause and he’s not a hill worth dying on or something like this. But I agree with you, Buck, the chances of them appointing one when they haven’t up until now, and when their storyline is that the U.S. attorney in Delaware…

And, by the way, I have no reason to question that the U.S. attorney Delaware seems like a fine guy. Everyone I’ve talked to tells me he’s a straight arrow. He’s much more like Durham than Mueller, I’m told. So this is not an indictment of him, and the other thing is, I don’t mean to go on about this, Buck, but —

BUCK: It’s all right. My next question was about that guy and what’s happening there, but keep going. So —

MCCARTHY: Yeah, well, what I was gonna say is, you know, Garland in his Senate testimony the other day got very indignant as if, “You know, you don’t trust me to do the right thing here? How dare you!” And as you and I know from law enforcement, we don’t rely, in our system, on the integrity of officials for investigations to function properly. We hope we get officials with integrity, but we enact regulations and rules in order to take that out of the hands of the people who are making decisions.

And the thing is not whether we trust Garland or not – and, you know, look, I think the Justice Department’s been politicized enough under Biden that there’s a lot of good reasons not to trust him. But, you know, I’m willing to say, you know, that Garland’s a reasonably honest guy. The point is we have a regulation because the Justice Department is supposed to strive for a standard of avoiding the appearance of impropriety.

So it doesn’t matter whether we trust Garland or not. What matters is, there’s a regulation. Are they following it? And when Garland says, “There isn’t going to be political interference,” my answer to that is, “There’s already political interference because there’s a clear regulation, and he’s not following it — and the only reason he’s not following it is politics.”

BUCK: Yeah. Speaking to Andy McCarthy, everybody, NationalReview.com for his latest. Andy, do you think on this investigation that specifically Hunter Biden, if they really have multiple felonies that are provable and that the evidence is, you know, beyond a reasonable doubt that there’s a problem here, do you think that there’s a future in which they actually would bring charges against the sitting president’s son given all the factors at play?

MCCARTHY: Yes, and here’s why, Buck. And this is actually a cynical answer even though I… So I want to make sure I let everybody down easy before I start, right? Here’s the interesting thing. The most interesting thing about the Biden investigation is the streams of money from foreigners and people who are connected to these corrupt and hostile and anti-American regimes and the millions of dollars are going to the Bidens.

So they’re looking at this as money laundering. They’re looking at it as, “Did the violate the legal obligation to register as a foreign agent if you’re doing business for foreign persons and entities and regimes and all that stuff?” That’s the interesting stuff. But what I would caution people is they keep saying that this is an investigation into Hunter Biden’s taxes.

And just to give a little inside baseball here: In almost every kind of investigation in the United States, the district United States attorney runs the investigation with very little interference from main Justice, which is the Justice Department in Washington. A big exception to that is tax investigation. Tax investigations are run by tax division at main Justice.

Regardless of whether, you know, the U.S. attorney is investigating other times that tax division doesn’t have authority over, because you have to get approval from main Justice tax division to bring charges. So I think that no matter what we think of Weiss in Delaware, the U.S. attorney, we ought to bear in mind the fact that there’s an unusual amount of main Justice supervision over this, number one.

And number two, I could easily see a situation — because no one in America cares about tax evasion. Everybody has known who cares about informing himself, that Hunter Biden has tax problems. They go back. He had liens on his properties in, you know, 2017, ’18, ’19, whenever they started. But this has been well known for a long time and it’s been reported that he’s paid some back taxes.

Because I think his counsel has advised him that, you know, the best way to try to avoid being prosecuted — or if you are prosecuted to get a light sentence — is to make sure you pay your back taxes back. I could easily see a situation where they drag this out — tax investigations are notoriously slow — and ultimately they take a guilty plea from him on a year or two of tax evasion, and they sew it up without doing any of the money laundering, without doing any of the foreign agent registration and without getting into the Biden family implications of it.

And this way the Justice Department can say, “See? We prosecuted the president’s son.” Biden, the president, can say, “See? I didn’t interfere.” And in the end, they’ll be able to say there was a prosecution, but it won’t be about anything that anybody thinks is particularly important here.

BUCK: You think if that happens, Andy, you just get the president commuting the sentence of his son on the tax charge? Does he pardon? How would you see that playing out?

MCCARTHY: You know, I think Biden… Hunter’s not again get a big sentence for tax evasion, Buck, under circumstances where he’s paid the back taxes. I mean, the money items here in terms of prosecution are money laundering. That’s where the real penalties are. I think, you know, he’s gonna go before the court and they’re gonna clean him up and he’s gonna say, “I’m a (crosstalk).”

BUCK: So you think maybe he does a couple weeks at climb club fed or a halfway house or whatever, the Biden administration says, “Yeah, look at us! We’re so honorable,” and then all the big stuff just fades away?

MCCARTHY: I do. I think there’s a very real possibility of that, and I’m not sure so sure, Buck, that even if there were a special prosecutor, that that doesn’t happen. Because, again, to say what I said at the beginning, there should be. If we’re gonna treat everybody equally, there should be a special prosecutor here because they have always have one in a Republican situation.

But its remember: Special counsels answer to the attorney general and ultimately to the president. And they have to follow Justice Department rules which would mean they presumably have to follow tax division guidance. So special counsel is hardly a perfect solution here period of time.

BUCK: Andy, just before we let you go, I’m wondering: Do you hold out that there’s any real possibility of big stuff coming in the Durham investigation or has it just dragged on so long, so far that it’s gonna go out with a whimper and not a bang? Where do you think that’s likely to fall?

MCCARTHY: Buck, in the last couple of weeks in the lead-up to the Sussman trial, which is supposed to start, I think, May 16th, what Durham has said is he still has a pending, open investigation. He hasn’t decided whether to indict a case for fraud against the United States. He has theorized that there was a fraud against the United States which was basically driven by the Hillary Clinton campaign.

But he has said he hasn’t made up his mind about things like whether the information on this ALFA Bank stuff that they brought to the FBI and to the CIA, whether it was simply insufficient to predicate an investigation or whether it was actually fraudulent, that they fabricated stuff to make it look worse than it was. I don’t know why he hasn’t decided that up until now — seems to me it’s been a long time — but he does say he’s still looking at it.

BUCK: So it’s not over yet, Andy. Is that fair to say? I mean, in a meaningful way it’s not over yet.

MCCARTHY: According to Durham himself, he’s told the court that, you know, they wanted immunity for this tech executive who worked with Sussman — the defense did — because they want to call him as a witness. And Durham says, “I’m not immunizing him. He’s still subject of investigation. We haven’t decided whether to charge him yet or not.”

BUCK: All right. Andy, we’ll have you back to talk more about it as it develops. Andy McCarthy, everybody. Andy, thanks so much.

MCCARTHY: Thank you, Buck.