--:-- [Theme music fades out, and the host, John Bickley, speaks]
--:-- John Bickley: Welcome to this extra edition of Morning Wire. I'm John Bickley, editor-in-chief of the Daily Wire, and I'm here with my co-host Georgia Howe. It's Saturday, June 17th, and we're discussing the historic arraignment of a former President of the United States and the current leading Republican presidential candidate. Joining us is National Review Institute senior fellow and former federal prosecutor Andrew McCarthy. Andy, thanks for joining us.
--:-- Andrew McCarthy: It's my pleasure.
--:-- John Bickley: First, let's start with who's presiding over this case. There's been some controversy about the judge handling this. Can you explain to us what the situation there is and what we expect to see?
--:-- Andrew McCarthy: I don't think there should be any controversy about it other than it's a media curiosity. It's not at all unusual in ordinary litigation, but Judge Aileen Cannon, who has been randomly assigned the prosecution by the government against former President Trump, was also the judge who presided over his effort right after the Mar-a-Lago search in August of 2022, to get a special master to review the stuff that the government had seized for purposes of determining whether there was attorney-client privilege or executive privilege materials in it.
--:-- Georgia Howe: [interrupting] Andy, can you explain what a special master is?
--:-- Andrew McCarthy: [pausing briefly] A special master is a neutral third party appointed by the court to review certain materials and make recommendations to the court. In this case, Judge Cannon made a determination that there should be a special master, but the Court of Appeals reversed her, and that was the end of that.
--:-- John Bickley: [speaking over] So, it's not a big deal, but it's being made into a big deal by the media. What about the judge's performance? Will it be scrutinized?
--:-- Andrew McCarthy: Obviously, her performance will be carefully scrutinized by people because she's a Trump judge. On the other hand, I think Democrats would be offended by the notion that cases, for example, involving, say, the January 6th defendants ought to be reassigned away from Obama judges or Biden judges, even though they've tried to make political hay out of that whole event.
--:-- Georgia Howe: [jumping in] That's a great point, Andy. It seems like both sides are playing the "judge card" here.
--:-- Andrew McCarthy: [laughing] Exactly. I think we should just sit back and wait and watch and see how she performs. I also think it's ironic under circumstances where the Biden Justice Department and its special counsel went out of its way to try to do this case in the District of Columbia until they finally realized that that wasn't practical and therefore are as guilty of forum shopping as anybody can imagine.
--:-- John Bickley: [chuckling] That's a great point, Andy. Now, let's talk about Trump's attorney's approach to this case. From what we've heard so far, what do we expect his attorney's approach to be?
--:-- Andrew McCarthy: Well, first, we have to find out who they're going to be. He's having some trouble. He needs local counsel in Miami. And the last I looked into it, that had not been locked in yet. But I do think that they have some cards to play particularly if they want to drag this out.
--:-- Georgia Howe: [speaking over] Drag this out? What do you mean by that?
--:-- Andrew McCarthy: [pausing briefly] I think if special counsel Smith had really wanted to get this case to trial quickly, he would have charged it lean and mean and stayed with just the obstruction counts. Because he's gotten into these Espionage Act counts, I was surprised, frankly, that there was much more of a description of them in the indictment than I expected there to be if he brought those charges.
--:-- John Bickley: [interrupting] Can you explain what the Espionage Act is?
--:-- Andrew McCarthy: [briefly] The Espionage Act is a federal law that makes it a crime to mishandle classified information. In this case, the indictment alleges that Trump mishandled classified documents.
--:-- Georgia Howe: [jumping in] And what's the significance of the Espionage Act in this case?
--:-- Andrew McCarthy: [speaking over] The thing is that invites the defense to make a big deal of these documents and say that they need the jury to understand more about what's in them in order to put the case in context. That raises the possibility of what's known as the gray male situation where in a national security case involving classified information, what defendants always push for is more disclosure of the classified information not because the that information necessarily is exculpatory or will help them much but because they know the government doesn't want to reveal it and as a result, it makes it more difficult to prosecute people because if the government fights it and the judge rules the government's way, that sets up the potential argument that Trump's due process rights and his ability to conduct his defense have been compromised.
--:-- John Bickley: [speaking over] So, you're saying that the Espionage Act charges are going to make this case more complicated?
--:-- Andrew McCarthy: [nodding] Yes, I think that's correct. It'll be under what's known as the Classified Information Procedures Act. Those issues, I had them when I prosecuted terrorism cases. They're very time-consuming. So I think if his objective, if the prosecution's objective was to try to get this case moving quickly and done prior to the election, I think that's going to be very difficult.
--:-- Georgia Howe: [jumping in] And what about the precedent here? Does this case open the possibility of reviving Hillary Clinton's classified documents case?
--:-- Andrew McCarthy: [pausing briefly] Yeah, well, let's start with Hillary Clinton. That case was dead at the time that the Obama administration exited and the new Justice Department came in. And what I mean by that is not just that at this point in time, as we sit here in 2023, the statute of limitations has run on the major offenses in that case, so they couldn't be prosecuted. What I'm saying is that the way that the Obama Justice Department investigated that case sabotaged the possibility of bringing it successfully.
--:-- John Bickley: [interrupting] Can you explain what you mean by "sabotaged"?
--:-- Andrew McCarthy: [speaking over] I mean that the Obama Justice Department gave people immunity who shouldn't have had immunity and a variety of other things they did. It made it basically impossible to bring the case.
--:-- Georgia Howe: [jumping in] And what about Biden? Could this case mean legal trouble for him in the future?
--:-- Andrew McCarthy: [pausing briefly] I guess the answer to that is we're going to see, aren't we? It's interesting that the Biden prosecutor, and he is a Biden prosecutor, I think, you know, the reason that Jack Smith, the special counsel, was brought in was really political, not legal. There was no conflict of interest reason that this case needed to special counsel. The Biden administration is trying to delude the country into thinking that Biden and the Biden Justice Department don't have any input in the prosecution of Trump. But that's ridiculous because the special counsel reports to the attorney general and he exercises the power of the president.
--:-- John Bickley: [interrupting] So, you're saying that Biden is involved in this case, even if he's not directly involved?
--:-- Andrew McCarthy: [nodding] Yes, I think that's correct. And the interesting thing about the way he's charged the case is that he put the Espionage Act offenses front and center at a time when there is a significant controversy regarding President Biden's illegal retention of classified information which is an offense in his case that evidently goes back decades to his time in the Senate.
--:-- Georgia Howe: [jumping in] And what does this mean for the national conversation?
--:-- Andrew McCarthy: [pausing briefly] Well, let me put it this way. I've been asked any number of times, do you think that they can get this case to trial before the election and what would be the impact of this case on the election. And I think you know, it seems like every six weeks or so another iteration of those kinds of questions comes up. Because Trump has these multiple litigations going, and it would be hard enough if this was the only thing on his dance card to imagine how this case gets to trial before next November with all the potential litigation.
--:-- John Bickley: [speaking over] And what about the other cases against Trump? Will they impact this case?
--:-- Andrew McCarthy: [nodding] I think they will. He's got a lot on his plate. Next week or the week after, they're back in federal court to argue whether the New York state case should be brought to the federal court. I think they're going to lose that, but they're going to have a big hearing at the end of the month. In August, he's going to be indicted more than likely by the Fulton County prosecutor in Georgia in connection with the 2020 election. On October 3rd, He's scheduled to go to trial in a massive civil fraud case brought by the New York State Attorney General, Letitia James. That case could go on for a few weeks, and there's a lot of information that's going to come out that's going to have to be addressed. In December, they're back in front of the New York judge in the Alvin Bragg case, the Manhattan District Attorney's case. That case has been scheduled for trial on March 25th of 2024, which is like in the middle of the primaries two weeks after Super Tuesday.
--:-- Georgia Howe: [jumping in] Wow, that's a lot to take in. Andy, thank you so much for talking with us.
--:-- Andrew McCarthy: Thank you.
