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--:-- John Bickley: Good morning, and welcome to this Sunday edition of Morning Wire. I'm John Bickley, editor-in-chief of The Daily Wire, and I'm joined by my co-host Georgia Howe. It's August 28th, and we're here to break down the latest developments in the unfolding legal battle between Donald Trump and the Justice Department.
--:-- Georgia Howe: Thanks for joining us, John.
--:-- John Bickley: Before we dive in, a quick word from our sponsors. One of the best things you can do to prepare for the unknown is to have a will in place. A will is about protecting your loved ones from the really hard decisions they'll face if something happens to you. If you're a parent, a will gives you the power to decide who will raise your kids should something happen to you and your spouse. Do yourself a favor. Go to EpicWill.com and use promo code WIRE to save 10% on Epic Will's complete will package. It's incredibly easy and well worth $119 to secure your family's future.
--:-- John Bickley: Now, let's get to our guest, former federal prosecutor and National Review Institute senior fellow Andrew McCarthy. We recently aired part of our interview with him, and now we're going to hear the complete conversation.
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--:-- John Bickley: Thanks for joining us, Andy. So let's start with the lawsuit filed this week by Trump's legal team. They're calling for a special master. Was this the right move?
--:-- Andrew McCarthy: It was the right move. I think it was late. The more experienced defense lawyers, if they were in place, I think would have asked for a special master at the very beginning, if not the day of the search, the day after.
--:-- John Bickley: Just so people understand, the idea of a special master is you need someone to go through the mass of documents that the FBI sees pursuant to this very broad warrant in order to sort out what might be privileged information.
--:-- Andrew McCarthy: And that's a big problem if you're going to do a search warrant of a former president, because the president has executive privilege with respect to any of his consultations with his advisors. And many of those advisors will be White House lawyers. So the attorney-client privilege sort of melds into executive privilege.
--:-- John Bickley: So what the Justice Department proposed to the court is the Department of Justice's usual procedures when you have a situation where your target is someone who has a lot of privileged information where they have what they would call a filter team that has no involvement in the actual prosecution in the case.
--:-- Andrew McCarthy: These are people who are not involved in the investigation, and their only job is to go through what is seized and identify what they believe may be privileged information. And they're supposed to withhold that from the prosecution team. You don't want the FBI and the Justice Department to do this on their own because they're trying to prosecute you.
--:-- John Bickley: So obviously, what former President Trump would have wanted was to have judicial intervention and have the court supervise that process rather than the Justice Department do it on its own. And that's what they asked for in the motion.
--:-- Andrew McCarthy: What about the search process? Wouldn't agents have access to documents that are potentially protected just through that process?
--:-- John Bickley: Yeah, I think that's a really important point. You know, it's common sense, actually, that if you're going to do a search warrant in a criminal case, the people who are mainly involved in the search tend to be the agents who have been doing the investigation.
--:-- Andrew McCarthy: You know, they're the ones who are in the best position to say, once you're doing the search, this is the relevant evidence. Did they, as the FBI usually does, send case agents to oversee and participate in the search, which would be the normal thing the FBI would do? Or did they send people in who had no involvement in the investigation to do a search warrant on the main target? It's a very unusual situation.
--:-- John Bickley: A new revelation that came out this week is that the White House was indeed involved in the early stages of this inquiry by the National Archives, and that President Biden said he would waive Trump's executive privilege.
--:-- Andrew McCarthy: From what we know so far, what charges could the Justice Department bring here? What the Justice Department very interestingly, I think, did was it used the new statutes that have been enacted over the more recent decades to essentially criminalize the Presidential Records Act, which Congress didn't put any criminal law provisions in.
--:-- John Bickley: So what they're saying is the National Records Act, even though it doesn't have criminal law sanctions in it, makes it illegal for Trump to be holding presidential records. And now over here, we have these other penal provisions that say if you illegally remove or destroy or convert to your own use government records, that's a felony under federal law.
--:-- Andrew McCarthy: So basically, they've stitched together these other statutes with the Presidential Records Act to put criminal teeth in the Presidential Records Act, which it didn't have when Congress enacted it, if they're correct about that interpretation, and literally it looks like they probably are correct, even if this is not what Congress intended, then that would make this a pretty easy case.
--:-- John Bickley: Now, even if the DOJ could bring charges, should it bring charges? Well, my initial reaction to that is and has been no.
--:-- Andrew McCarthy: Since we've never had a prosecution in the history of the United States of a former president much less a search of a former president home I think it really needs to be a very egregious offense before you would bring the charge especially when you dealing with someone who may actually run for president again and be the opposition to the incumbent president in the next election.
--:-- John Bickley: It's hard to make an assessment without knowing exactly what the damages. The only thing I would say about it is the most recent precedent here is the Hillary Clinton case. And she, too, had access to the top, top secret stuff. And by the FBI director, then at the time, Jim Comey, by his own admission, she was reckless with it.
--:-- Andrew McCarthy: And she wasn't, you know, forget about prosecuting her. They never tossed her house. They never got a search warrant. And they played pretty pleased with her lawyers in terms of what the FBI was allowed to see and how it was allowed to collect evidence.
--:-- John Bickley: So I think they're stuck with the precedent that the Obama-Biden Justice Department used with Hillary Clinton.
--:-- Andrew McCarthy: So you say Trump's new lawyers made the right moves this week with this filing. What other steps should Trump and his legal team take?
--:-- John Bickley: Well, they're not following my advice, which is that, you know, I just think it's perilous in a legal sense for a potential defendant, a criminal suspect, to be making affirmative statements in the press without knowing what evidence the government has.
--:-- Andrew McCarthy: And I have sympathy for President Trump's lawyers because he's a very difficult client. And, you know, he has competing interests here, interests that are in tension with each other. On the one hand, as a potential defendant, it's really in his interest to keep quiet right now until we know what the government is going to do and what evidence it has and so on.
--:-- John Bickley: But at the same time, you know, he wants to maintain his political influence and potentially run for president again. And part of what he wants to run on, he wants to portray himself as being persecuted by the incumbent administration.
--:-- Andrew McCarthy: So it's in his political interest to talk a lot. The problem is everything he says is eventually going to be used against him if it hurts him in his case.
--:-- John Bickley: I say this as someone who worked at the Justice Department for a long time. You can talk yourself into getting indicted.
--:-- Andrew McCarthy: There could be a case here where the Justice Department thinks they have a prosecutable case, but under the circumstances, they decide the better part of judgment, the prudent exercise of discretion is not to bring a charge on these facts.
--:-- John Bickley: And they might be satisfied with that, except if President Trump is out publicly saying that the Justice Department is corrupt and the agents planted evidence and all these terrible things happen.
--:-- Andrew McCarthy: I can assure you that inside the walls of the Justice Department, there are people who are working on this case who are saying to their superiors and saying to the Attorney General, let us charge him and get him in front of a jury so that we can prove what really happened here because he's calling our honor into question.
--:-- John Bickley: Speaking of public statements, the Attorney General Merrick Garland has made the very rare move of publicly addressing this case. He held a press conference where he defended the FBI and DOJ and assured the public they were not politically biased.
--:-- Andrew McCarthy: I think it was really dumb to speak publicly and do what he did. He got a very little marginal, I think, utterly unimportant edge on Trump by speaking publicly.
--:-- John Bickley: The marginal benefit that Garland got out of that is that he could show that he was happy to have the warrant out there while Trump could have released it and didn't.
--:-- Andrew McCarthy: OK. In the meantime, I think the problem for Garland in speaking, if that was the only benefit he was going to get out of it, is, you know, number one, he's violated the Justice Department guidelines, which is that the Justice Department doesn't speak publicly about investigations, doesn't even confirm or deny.
--:-- John Bickley: I can't even confirm or deny the fact that we're having this conversation, right? I mean, that's basically what the Justice Department's usual position is.
--:-- Andrew McCarthy: They won't confirm anything. So when you speak publicly, you've lost that. He can no longer say that he was faithful to the Justice Department guidelines.
--:-- John Bickley: And then the other thing I think is a big fail is if you're going to speak, then you have to address the things that people are interested in. So what were people interested in here?
--:-- Andrew McCarthy: They wanted to know, are the things that Trump is saying publicly, are they true? And mainly what they wanted to know is a search warrant is a very intrusive, it's the most intrusive evidence collection method that the government has to go into somebody's house and search it.
--:-- John Bickley: So what people wanted to know is, Why was this necessary? And if Garland had an explanation for that, like, you know, look, we tried 17 ways to get him to give us this information. And, you know, we gave him a grand jury subpoena. And when he didn't comply with that, we gave him another one.
--:-- Andrew McCarthy: And it was more exacting. You know, have a story for like we tried everything before we went to DEFCON 5 and did the warrant.
--:-- John Bickley: Instead, he didn't address any of that. He didn't explain why a warrant was necessary. He said something that was patently untrue, which was that the Justice Department's default position is that you don't do a warrant unless it's absolutely necessary.
--:-- Andrew McCarthy: And that when you do the warrant, you make it as narrow as possible. And then we saw the warrant. It's like it's almost like a general warrant, which is, you know, essentially what caused the Revolutionary War.
--:-- John Bickley: So from Garland's standpoint, if you're going to speak, then, number one, you have to make sure everything you say is true and accurate.
--:-- Andrew McCarthy: And number two, you got to respond to the things that people are curious about. And if you're not going to do those things and you have this justice department policy that gives you the luxury of shutting up, then maybe you shouldn't speak.
--:-- John Bickley: Well, Andy, thank you so much for joining us today.
--:-- Andrew McCarthy: Thanks so much for having me.
--:-- John Bickley: That was the National Review Institute's Andrew McCarthy. And this has been a Sunday edition of Morning Wire. From all of us here at Morning Wire, we hope you're enjoying the show.
--:-- Georgia Howe: Did you know that if you subscribe to Daily Wire Plus, you can get access to all Daily Wire has to offer? That means news, commentary, documentaries, movies, and so much more. Become a subscriber today. Download the Daily Wire Plus app and take us with you wherever you go.
