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--:-- John Bickley: Welcome to Morning Wire. I'm John Bickley, and I'm joined today by Georgia Howe. It's Sunday, August 6th, and we have a special guest, former federal prosecutor Andy McCarthy. Andy, thanks for joining us.
--:-- Andy McCarthy: Thanks for having me on the show.
--:-- John Bickley: So, let's dive right in. The third indictment of former President Donald Trump has sparked celebration among Democrats and sharp criticism from Republicans. Can you unpack the legal questions at the heart of the Trump J6 indictment?
--:-- Andy McCarthy: Well, yeah, as far as politics masquerading as law masquerading as politics, the indictment arises mainly out of the fact that the political system failed to hold Donald Trump accountable the way the Constitution intends executive abuse of power to be addressed, which is by impeachment. And the criminal justice system is an inapt substitute for that.
--:-- Georgia Howe: That's a great point. So, what do you mean by politics masquerading as law?
--:-- Andy McCarthy: The means they've chosen is the criminal justice system, but it's really just trying to attain the same political objective they were shooting for in the first place. And the reason I say there's yet another layer of masquerade here is that the timing of all this and the way the indictment is structured demonstrates that what they really want to accomplish is to try to push the case to trial and then get a bunch of evidence mainly about the Capitol riot, even though it's not charged as a crime in the indictment.
--:-- John Bickley: That's interesting. President Trump has called this indictment election interference. Will Trump's legal team make that election interference part of their legal argument?
--:-- Andy McCarthy: Yeah, they absolutely are. And I think while it's effective rhetoric, I also think legally they have some things to play with. I mean, first of all, as I just mentioned, there's a section at the end of this 45-page indictment that deals with alleged exploitation by Trump of the Capitol riot in the crime that is being pled at that point, which is fraud on the United States.
--:-- Georgia Howe: So, what do you think about the First Amendment argument in this case? How much does it play into Trump's argument?
--:-- Andy McCarthy: It plays a great deal into it, because let's put aside the monumental task that Smith would have in terms of proving that Trump knew what he was saying was false, which I think is going to be a tough row for him to hoe, to say the least. Most of this indictment, I'd say a good 90% of it, is politically protected speech.
--:-- John Bickley: That's a great point. How much does intent matter in this case? Does the special counsel offer clear evidence that Trump did in fact know that the results were not fraudulent?
--:-- Andy McCarthy: Well, it's an interesting question because what you run into is this idea of objectively what was his intent and subjectively what was his intent. And what I mean by that is the government's going to have a lot of evidence that people who were in a position to know were telling Trump that there was no material fraud that would have been of a quantum great enough to reverse the result of the election.
--:-- Georgia Howe: So, what do you think about the specific charges in this indictment? There are technically four charges, and you've expressed skepticism that they actually hold up legally. Can you walk us through these charges and their potential legal problems?
--:-- Andy McCarthy: Yeah, we can talk about them in three buckets because one of the charges, obstruction, all you have there is that he's charged both what's known as a substantive law obstruction, which means they really did obstruct, and also a conspiracy to obstruct. So we can talk about that as one.
--:-- John Bickley: That's helpful. What about the civil rights count? You've said that's just absurd. Can you explain why?
--:-- Andy McCarthy: What Smith is relying on is a post-Civil War statute that was designed to target the Ku Klux Klan's violent intimidation and forcible against blacks, mainly in the South, when they tried to exercise their right to vote, which one progressive Supreme Court decision from the 60s applied to a ballot stuffing scheme, even though that wasn't what it was intended to apply to either.
--:-- Georgia Howe: So, what about the idea of a convicted candidate running for president? Can we have a convicted candidate running for president and even winning the presidency?
--:-- Andy McCarthy: Yeah, the constitutional qualifications to seek and be elected president is that one has to be 35 years of age, I think 14 years resident in the United States and a natural born citizen. That's it. So there's nothing in the Constitution that says that somebody who is either facing indictment or indeed is in prison can't seek the presidency as long as the other qualifications are met.
--:-- John Bickley: Well, Andy, thanks for joining us today and breaking down the merits and flaws of Jack Smith's latest indictment of former President Trump.
--:-- Andy McCarthy: Thanks for having me on the show.
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--:-- John Bickley: That was former federal prosecutor Andy McCarthy, and this has been an extra edition of Morning Wire.
