--:-- [Theme music fades out]
--:-- John Bickley: Welcome to Morning Wire. I'm John Bickley, Editor-in-Chief of The Daily Wire, and I'm joined today by Georgia Howe. It's August 27th, and we're bringing you a special Sunday edition of the show.
--:-- Georgia Howe: Thanks for tuning in, everyone.
--:-- John Bickley: Today, we're discussing the latest developments in the Fulton County election interference case brought against associates of Donald Trump. Joining us now is former federal prosecutor Andy McCarthy. Andy, thanks for being on the show.
--:-- Andy McCarthy: Thanks for having me, John.
--:-- John Bickley: Andy, you've written extensively on the National Review about the case brought by District Attorney Fannie Willis. You argue that it's ill-conceived and an attempt to turn the federal and political investigation of the January 6th committee into a state-level legal case. Can you unpack your premise for us?
--:-- Andy McCarthy: What District Attorney Willis has done is adopt the January 6th committee's theory that Trump was a criminal mastermind who put into motion a series of connected schemes to retain power. But she doesn't go as far as the January 6th committee, probably because she doesn't have venue over the Capitol riot, which couldn't be brought as a crime in Georgia because it didn't have any factual connection to it.
--:-- Georgia Howe: That's a great point. Can you explain how she's trying to tie all these disparate schemes together?
--:-- Andy McCarthy: The problem she has is there's not really a unifying crime that she can charge, which brings all these schemes together. They're better understood as half-baked, incoherent, and a lot of them are unserious. She's trying to do it by racketeering, but what she calls a criminal organization doesn't meet what the law regards as a racketeering enterprise, like a mafia family.
--:-- John Bickley: That's fascinating. You also mention that the 19 people charged had no interest in being an organization or even an association. Can you elaborate on that?
--:-- Andy McCarthy: They didn't understand themselves to be an association. Their scheme was not going to go any further than January 20th, 2021, because Trump would then either be in power or out of power. Either way, there would have been no reason to continue to have an association, even if you grant, for argument's sake, that they did have one for those two months.
--:-- Georgia Howe: Speaking of those co-conspirators, there's been a lot of attention on Trump, of course, but far less attention on most of the co-defendants, apart from a few like Mark Meadows and Rudy Giuliani. What should we expect from them, the co-defendants, and the role that they will play in the case?
--:-- Andy McCarthy: I'm proposing that what Willis should have done instead of bringing the big case she brought, she really should have broken it down into at least three and probably four cases. If she had done that, it would be much easier to see what the different roles of the different people are.
--:-- John Bickley: That's an interesting point. Can you walk us through how you think the case should be broken down?
--:-- Andy McCarthy: Yeah, I think you would have one case involving Trump and most of the major players in the stop the steal scheme that went on from Election Day to the Capitol riot. You have one case involving Trump and those people which would be centered around the so-called fake electors scheme that they all charged in. I think the only person who's in the category of major defendant in the case who's not charged in the fake electors scheme is Sidney Powell, who is charged in a different scheme involving four defendants.
--:-- Georgia Howe: That's a great point. Can you explain the fake electors scheme and how it relates to the case?
--:-- Andy McCarthy: The Trump end of it, the first case that I think we want to focus on because it's the major defendants, I would say you have Trump, six other of his top aides or advisors, and three minor players who are the people who actually volunteered to be electors. I actually think that case should be two different cases. The minor players, the people who actually volunteered to be electors, had a different understanding of what the scheme was than the major players.
--:-- John Bickley: That's a great distinction. Can you explain the difference in their understanding of the scheme?
--:-- Andy McCarthy: The electors would tell you that they understood themselves not to be fake electors, but contingent electors, meaning that they were basically a placeholder and that if the campaign was able to lawfully get the election overturned, whether through the courts or through legislature, if that happened, then they stood ready to substitute for the Biden slate of electors that was appointed and certified after Biden won the popular election.
--:-- Georgia Howe: That's a fascinating nuance. Can you explain how Willis's charge is based on their preparation of what she regards as phony manufactured documents and then mailing those to the National Archives and the District Court in Washington?
--:-- Andy McCarthy: Yeah, I think we're talking about Trump, John Eastman, Rudy Giuliani, a guy named Ken Cheeseborough, and three or so of Trump's lawyers in Georgia. Their scheme, according to what the state alleges, was not just to have these slates of alternative electors in Georgia and other states that they were disputing, but they wanted at a certain point to use the existence of these alternative slates as a basis to argue to Vice President Pence that he should invalidate the vote in those states or at the very least remand the election and the electoral votes back to the states so that they could have further proceedings.
--:-- John Bickley: That's a great explanation. Can you explain the historical precedent for this kind of scheme?
--:-- Andy McCarthy: There is some precedent for that in the past, right? You're correct. But the best historical oddity on this, I think, is 1960 in Hawaii, where it was a very close election between Nixon and Kennedy. And initially, it was thought, I believe, that Nixon won. And I think we were talking only about one electoral vote from Hawaii at that time, maybe two. But in any event, it initially looked like Nixon had won, and the state actually certified the Nixon electors. And then it emerged that Kennedy had won. So the state then certified another set of electors.
--:-- Georgia Howe: That's an interesting historical example. Can you explain how it's different from the current situation?
--:-- Andy McCarthy: So both ended up going to Washington, and you actually had two slates that had legitimately been certified by the state. And in an interesting moment, because of course, at the time, Nixon was vice president, So Nixon during the joint session of Congress where they certified or validated Kennedy victory it was Nixon who said that they would count Hawaii as a Kennedy state rather than a Nixon state So it kind of an interesting historical oddity but it really not on all fours with this situation because there no confusion about this set of electors from Georgia. They were never certified by the state.
--:-- John Bickley: That's a great distinction. Can you explain the potential implications of the DA's choice to charge this as a RICO case?
--:-- Andy McCarthy: I don't think it's going to survive. If the RICO survives, they'll be able to keep the case together. But I just don't see how it's a RICO, as the law understands RICO. I think if they were to cut it up into three or four different cases, you could actually get pieces of the case to trial pretty quickly.
--:-- Georgia Howe: That's a great point. Can you explain how the case might be broken down into separate cases?
--:-- Andy McCarthy: Yeah, I think you could have a case that's based on the fake electors. In that case, you would also throw in the Raffensperger phone call and some other offenses that these other people are charged in. And then you could have a separate case on the hacking conspiracy breaking into the state election system to purloin their data. And then you have a separate case on the alleged intimidation of this election worker, Ruby Freeman, in order to try to get her to change her testimony in the state investigation of what went on at the state farm arena where she was an election worker and where the Trump people alleged that there were all kinds of shenanigans.
--:-- John Bickley: That's a great breakdown. Can you explain some of the specific charges that you think might be thrown out?
--:-- Andy McCarthy: Yeah, I think she's done a few things that are preposterous. So, for example, she brings a charge against Jeffrey Clark, who was a Justice Department official who was sympathetic to the idea that there might have been election fraud and proposed sending a letter to Georgia to tell them that the Justice Department had serious concerns about potential fraud and suggest that the legislature convene a session to consider decertifying the results. It's an absurd charge because it's only a draft letter. The Justice Department never sent it. It never got close to being a formal letter that you would send to the state of Georgia.
--:-- Georgia Howe: That's a great point. Can you explain why you think the case against Mark Meadows might be thrown out?
--:-- Andy McCarthy: I don't think actually the solicitation charge that she's trying to make fly in connection with Trump's phone call to Raffensperger, the secretary of state of Georgia. I don't think that that's a legally valid theory. But with respect to Meadows, I would just say narrowly he didn't do anything in the case other than set up that phone call. It's not like he threatened Raffensperger in any way. He's the chief of staff who set up a phone call between the president and an election official in another state, which is part of his duties.
--:-- John Bickley: That's a great point. Can you explain why you think the charges related to providing false information to the legislature might be thrown out?
--:-- Andy McCarthy: You know, the Trump team contended there were tens of thousands of votes in Georgia that were against Georgia election law. But I think Willis' charges on that score don't pass muster because the crime in Georgia for providing false information is if you provide it to a department or agency. Those tend to be executive agencies If you going to charge somebody with providing false information to a legislature they have to be under oath There a crime in Georgia called false swearing which is like perjury. None of the statements that are charged in the indictment were under oath.
--:-- Georgia Howe: That's a great point. Can you explain the potential implications of the case going to federal court?
--:-- Andy McCarthy: I think for the most part, there's a very good chance that it can't move forward as it is because I really think that the federal defendants, that is to say that of the 19, the people who were in federal government positions during this whole escapade, they have a very good argument that the case should be moved to federal court. And I think it broadly may be that even the co-defendants who were not federal officials have to go to federal court. If the case goes to federal court, they'll have to sort that out as well.
--:-- John Bickley: That's a great point. Can you explain the potential implications of the civil cases that Trump is facing?
--:-- Andy McCarthy: You know, Trump's dance card is pretty full right now. You know, he starts a civil fraud trial in New York brought by the state attorney general on October 3rd. He's got two more federal civil trials in January. So just the civil cases take you through the early debates and all the way up to, I think, Super Tuesday is March 5th. So it's possible that this trial that begins at the end of January could run right into Super Tuesday.
--:-- Georgia Howe: That's a lot on the docket for Trump.
--:-- Andy McCarthy: Yeah, a lot on the docket there for sure.
--:-- John Bickley: Andy, thanks for joining us today.
--:-- Andy McCarthy: Oh, it's my pleasure.
--:-- [Theme music starts playing]
--:-- Georgia Howe: After talking with Andy, we reached out to Jenna Ellis, one of the co-defendants in the case, about being named in the indictment and the effect the charges will have on the practice of law.
--:-- Jenna Ellis: I'm very encouraged by Andy McCarthy's comments about my case specifically, but also all of the lawyers across the political spectrum that have rallied to the defense of the practice of law. This is literally an attempt by the state of Georgia to criminalize the practice of law. That should never happen in America's history.
--:-- John Bickley: That's a great point. Can you explain why you think this is an attempt to criminalize the practice of law?
--:-- Jenna Ellis: We have the right to petition our government for redress. We have a right to represent our clients, whether or not the state agrees with the political opinions or the case of a particular client. And so this is a pivotal moment in America's history that we are going to see whether or not the U.S. Constitution prevails. The rights that are secured to every individual to obtain the right to counsel, the right to free speech, the right to petition, all of these things that we hold dear in America.
--:-- Georgia Howe: That's a great point. Can you explain why you think this is a moment of great significance for the country?
--:-- Jenna Ellis: This is a moment that I think we need to truly step back and say, what is going on in America that individuals can be targeted for their political views or like in my case, simply for practicing law?
--:-- John Bickley: That's a great point. Thanks for sharing your thoughts with us today, Jenna.
--:-- Jenna Ellis: Thank you.
--:-- [Theme music continues to play]
--:-- John Bickley: Thanks for tuning in to this special Sunday edition of Morning Wire. We'll be back with more coverage of the latest developments in politics, culture, education, sports, and more.
