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The welcome to the Mccarthy report, the podcast, where you would normally hear rich lowry, discuss with Andy Mccarthy, the latest legal and national security issues, but rich is out this week. So your hearing me no a robin. Instead, this week we will discuss what else the latest on the trump indictments and the binding family influence peddling scandal. It for some reason you are following us on a streaming service. You can find us on spotify, itunes and anywhere else. You get your podcast. Please give this podcast Andy Mccarthy a glowing gushing five star review. He deserves it and soda. We it's on itunes, good itunes, five star of you, do it before even forget and now without further ado. I welcome to this podcast none other than its upon in this house.

Andy, mccarthy, Andy. How are you no I'm doing great how're. You very good. It's a pleasure to talk to you I think you ve got a lotta downtime on your hands right. You got nothing! Well, you know I its body what's going on three, that we are not at all, but it's funny, you're your pinch heading for rich and a few days ago, I think second time in about a week? Did the year old haunted commentary podcast- and I must I must have said something smart because at the end of John said, good bye, Noah, so I guess get on. I said something I think I haunt his imagination, because that has happened in a couple of occasions I too, this made a triumphant returned to the commentary pack has this morning. Oh excellent, and it was an absolute treat but Remain name comes up, came up in that podcast, as it has done

just about, I think, every american household. Over the last week, it's been you been everywhere, you ve been on with Jonah. You belong with the commentary guys you ve been on fox is that the the universe hangs on your views and we need to get them because we have, let's start with the indictment in georgia this week, the criminal indictment a rico case against donald trump and eighteen other co conspirators the four, indictment and with some real voluminous company here and there, but the charter is an hour charges, not just as rico case as I understand it, but the charges include conspiracy to defraud the state, making false statements forging filing false documents, harassing intimidating and impersonating public Those influencing are attempting to influence the testimony of witnesses, tampering voting machines and even plotting to steal voting machine data.

Yeah, let's tease out the charges and how their being prosecuted in this rico format the struggle here. No, this goes back to the january six committee in the church. Months that went from the election through the capital riot trump head. People around tim and people who were around people around trump who engaged in a variety of disconnected half baked hopeless, futile schemes that I always thought had not. You know. I was to take them seriously, because none of them actually had any chance of success and my beef that the january six committee tried to frame this as one giant scheme that had a bunch of

it's as if it was a sophisticated, well thought out coherent scheme, and I think that the truth I wish you had a bunch of people running around like chickens without their head, who had like an over arching desire to see trump kept in power then did a lot of things. Some of them stupid some of them ostensible plausible, like China, to petition state legislators and representatives to work to take action, but on boarded by any factual level so, in other words it doing things they are allowed to do legally, but they don't have a basis for pushing for them. and this is all taking place in the context of the of the legal and political system, not like it's not like big ol commercial fraud. So I think that georgia indictment is kind of the

though the prosecutors version the january. Six committee in that fanny. Well The district attorney, has put all these disparate schemes in us single indictment and what, She's groping, for, I think, is a vehicle to present as one giant conspiracy, which is how she landed on rico, but the most that the much more important for the case. I think will end up being what you just listed, which is all these different schemes, which I think could have been indicted separately with separate nubs of defendants and the cases would be better. I'm nuts

this one is going to survive is one case in case. So, as you wrote for our website, it do say that quote: some are some of these allegations quote may amount to crimes of violate the penal statutes, so there are plausibly, prosecutable and and charges that you can get a conviction on here and the format that their seeking here this this rico format the advantage of it. As I understand it, is the pressure that it puts on the president's co defendants to provide additional evidence in support of their will the prime target of his investigation. Yet so so here's the thing in theory- that's right like in a normal rico case, One of the things you would help for like that, The famous sir John gaudy Gambino rico case from years ago, the way they structured it that put pressure on. Ultimately, the

number two in the family sacked sammy gravano to decide that he should plead guilty and cooperate. And in that situation you have spent or in the case horrid. Position to roll over on higher up in the case in a way that really damages them? What I see here is like you know you look at this and try to put it together as one conspiracy, but, for example, what is the you know the the Person who gets hired by sidney powell to go to what was a coffee county and steal the election data and the computer. If that person was look at a role, what would he possibly be able to tell anybody about trump? You know there's like three or four levels of

it buffers a lot of buffers and the fan yeah, except that this isn't a family. You know, that's the the the other thing about them who, who that was frankie panting julie's cheek cheech? That's right, Cheech right yet so the thing is were they the default one of the defining things about racketeering enterprise is that it. continues in time and space. That is the idea behind rico. Is that your criminalizing, not the crimes, disparate different crimes that the family commits, but that the gist the crime is to be a member of an enterprise that contain, used to exist because it generates money, prep power, property and the like, and the problem with trying to indict this thing. As a rico thing,

is these? Nineteen people had no interest in being members of an enterprise. They had no interest in being in this group. The virgin thing here is they wanted to retain trump and power and as soon as that either succeeded or failed in january of twenty twenty one. This leading group of People will get a melt away as a group. So it's it's really not a mafia family, where the people who are the enterprise? Have an abiding interest in the continued persistence of the enterprise in order to contain

to generate income, so wasn't, but I'm gonna push back on that a little yet so wasn't there benefits and privileges associated with being members of this enterprise, the fact that they were orbiting around the present, the united states, which is self evidently beneficial, and it dissolved only win that that dissolved, but there were benefits and and privileges associated with membership in the enterprise, as we define it in indictment when he was president, which is why they were trying to retain them. As President yeah see, I would say two things about that number one as you look at the door, team people in this indictment, it's hardly clear that that their role orbiting around trump. It is that they all want europe to be retained, but there were people in thing who trump couldn't pick out of a line up and who probably ever met or got anywhere near trump, but who serve the cause, trying to get em retained in power, and the other thing is it's always you know like

if we have, if you and I are engaged in a bank robbery, conspiracy and we succeed, there's content doing, benefits of that the procedure, for example, of the heist that accrue to us long did the conspiracy is oliver, but that and extend the life of the conspiracy, a conspiracy continues until its objective either is achieved or or conclusively, fair, this thing was gonna end janet twenty twentieth, twenty twenty one, one way or the other, and you are right, They could have rigged you're right about two things: one. There are a number of people in this conspiracy who are floating around trumpet in that orbit and Secondly, you could write. Conspiracies. You could write a conspiracy charge that huh as its objective something along the lines of what you're describing the continued students of some benefit-

that they were deriving network dependent on trump retain office it and continuing in office. So if you rope the image. That way. I think that would be right, it went on and that it had. It was more like a rico enterprise sense that it had a continued interest in its existence, but that now how she wrote it, she writes it that you know this basically went from disease the first january seven and then it's over so of these charges that I described and forgive me for my very lay interpretation of all this, but I've heard some analysis that the strongest criminal allegation here, not notwithstanding others, but the strongest is this alleged plot to steal voting system data which probably most likely never went very far up the chain and certainly did

involve donald trump, most likely unless there is some evidence we haven't seen yet that demonstrates that. So what are you is your which so that just demonstrates the struggle that are going to have your in courtroom. But what is the best charge of these charges in your view and are they? Are they imperilled by this rico? format yeah. I dont think. Ultimately, you know what would be imperilled would be the rico charge itself if it doesn't survive. You'll just have a bunch of disconnected cases. What make them any less strong? Just because the thing she tried to tie this together with may not work, but you're right about the disease Business of I think, I'd think if I'm remembering right that she made about seven charges, the young. The scheme to invade the computers That means that had the voting data on them Madame involve still

dominions, proprietary data, some of em, involve the privacy voters, of them are charge because that daddy is supposed to be in the possession of the secretary of state of georgia. So that's it. You know different, but it's all different ways: getting it the same thing which is that they get in they invade the computer system and try to get this information. the highest ranking if you're going to rank the conspirators. Here, I would say the highest ranking person in that scheme is sidney pal and the reason I dont think that she can that that willis can connect us to trump and the other defendants is with we see, if you compare this to the to the accounts that are about the the fake electors, who would tell you that their contingent electors right that's a whole different thing. The way that she writes the counts on the contingent electors. She says you know they met. They prepare

these documents, etc and, in those counts, the contention there's themselves are charged and then after each one of those canst is account that charges trump giuliani eastman and others with kids spiralling to do what the phoney electors did. so, that suggests that there's a theirs, nexus between the fake electors The higher high the conspiracy You don't say anything like that with the invasion of the computer system. So, basically, on those ones. They charge sidney pal. and some underlining some of whom I guess she hired to to go to coffee county. they had some connection that was going to get them into the into the data, but Can I have a hard time connecting that two trump, because if they weren't there be counts that that that work?

hanging, counts the charge trump and the rest of them with the with conspiracy, which they don't have the discussion with this case, I think is that the weaker count then. I think that the rico canada we count and accounts that are she may have trouble with, because there's gonna be significant issues about whether this was just political speech rather than actionable false statements Those counts involve the highest in people in the conspiracy who I we consider to be. You know, tromp giuliani eastman. I mean that's why she ranks them, and then I think, as you get, I expected that this case would stronger in some ways than jack smith's election interference case, because since this state has responsibility for the conducting and policing of elections,

willis has available to her a ray of offences that go to election integrity that Psmith did right. This is the reason why Psmith has to worm has to use these the council stretch them she's got is she's got away integrity counts like this whole business about the voting systems. I think, as you get closer to to stuff really is about election integrity, the council stronger and that's why the election and the invasion of the voting system is the strongest count. But the problem is, as can't get stronger the connection to the highest ranking people, I think, gets weaker. Okay, we will return to donald trump. Of course we well, you can't get away from him, but we have to go shift to the Biden family. I know it feels like this. In several months ago, but it was only last friday, then attorney general.

Garland named: u s attorney david, wise, special counsel to oversee Joe Biden, sir, this job son hundred buttons investigation and likely prosecution. So the way I see this Andy is theirs kind. Good and bad an ugly to this, and it's been done and done and done by listeners of this park. I haven't heard all any of it, so Maybe we'll start with. Possibly the good. The jurisdictional constraints are loosened, Maybe you get around some of this political pressure that the irish whistleblowers described and vices memo indicates that look. This plea deal imploded. We gotta go to trial now, which would put the white house in a very ten differ position, a tenuous position with unforeseeable levels of political jeopardy. This can't be controlled by the white house any more, as the d J obviously tried to do in the effort to make this go away with the cushy plea deal, there's there's been

lot of frustration with disappointment, but it is not good for the bite and administration now. I can get a look at this in a bottom line, especially a political sense. Its anything that sustains this anything that is, that appears to be a climb down by the justice department in the face of the seriousness of the allegations is very bad for the Biden administration. I would liked this too, to think that progress was being made. But I, in order to to see it as legal process progress, I would have to have believed. David wisest story, which, unfortunately, is not true so and to be more concrete about this, the idea that there were restrictions that were preventing him from filing charges is a lie. So if we net We now say that girl

this finally stood down. Meda may special counsel, and now He has all the authority he needs when garlon previous they told us, he had all the authority he needs there. Being by trying to run this story. Past people, the people don't understand how the justice department works, but it commonplace for united states attorneys from different districts to have disagreements about how cases should be handled. And when that happens one, u s attorney, can't block another. U s attorney from filing charges. What happens as you go down to the justice? bourbon, all those. U s attorneys answer to the deputy he and the hiv and then mainly- This makes a decision and, if the, if those, if Merrick garlon what is truly wanted to truly had posed in weiss, these in all decision making authority he could simply have ordered.

U s attorneys from why eaten and los angeles to cooperate with weiss. The other that could happen. Noah is why could simply have indicted the case in delaware and had hunter way Then you which hunter would have been willing to do for purposes of of entering a guilty plea and in fact did do when he did enter a gift. Flee in connection with the with the gun charge So it was never true that why was being blocked by these? Are the? U s? Attorneys. That's story. He told the agents because he trying to get out of the room, he didn't want to throw you're a girl and under the bus and illustrated these guys gee. You know I'd love to indict taxes. in counts in these other districts, but my hands are tied, so this was ps from the start and the other thing that sport Asterisk is garland to come out. Look the country in the eye and say, after he everyone, this guy's got all the authority he needs. Now we can

and says well, you know the wise came to me last week and said he had finally determined. Then he needed this other authority. So now I've given him the authority. That's complete nonsense in the inn in the justice to under the regulations. It's not up to a district. U s attorney too. ask the attorney general for authority to be a special council under the regulations. Are you Security is not eligible to be a special council there. some push back on this, so I just wanted or something yeah yeah, so first of all I objected to the join durham thing at the time I said: durham, qualified to be a special council, but I think the wake bob justified it in two different ways for first what they say is this is the in here and statutory authority of the attorney general and I,

for a second contest red The attorney general has authority to assign any prosecutor inside the justice department and if he wants to recruit someone from outside, he could bring someone from outside the justice department to handle but he shouldn't be allowed to label it a special council. Unless complies with the special council regulations, and those regulations require that. Bring a lawyer in from the outside. It would be foolish. if you are operating under the regulations and that then the duplicity here is that merit garland keeps referring to the regulations as if these following them. But if you will actually following the regulations. No, u s attorney would ask the special council authority because it would be like asking to be fired, and even it that said, you wouldn't be bring someone in from the outside cause. The person is inside But putting that aside, the morn thing is under the rags you special council when there's a

conflict of interest. When there's a serious investigation that has to be investigated- and there is a conflict of interests that prevents the justice department from do in the normal course for due to ethical concerns, and you can have a more fraud conflict of interest in the bible, justice department having to investigate the president's son over behaviour that the President's implicated in so it wasn't up to ice to ask to be a special council it up to garland, recognising that it was a conflict of interest to appoint a special council. So the whole thing is just fraudulent. And in the meantime, the important thing is that now that he's got special council authority for what that's worth. What's they are left to prosecute you? Never I did the case so the most important kay counts that we know of self or are gone. So you don't expect future tax evasion, tax related charges, while you nothing that's what the investigation is going

centre on their oars and investigation, and there is prosecution forthcoming, theirs. Investigation on paper whether there is actually a prosecution forthcoming, the only things that are filed by the two Misdemeanor tax charges they ve. Never guided the case, the misdemeanour tax georges my recollection is effect relate to is a twenty seventeen and twenty eighteen. I think those are the years but the twenty sixteen fifteen and fourteen counts are gone, because the special council fail to violent and movement, the statute of limitations is run on those counts and the thing Noah with respect to, like I heard that should you guys had, on the editors the other day- and I agree with your point that you know if the money is fungible and an abiding families, just one big ol piggy bank, if them he's coming in than it belongs to show as much as it. I don't want to

words in your mouth, but I mean I, I was sympathetic to your take on this. All those as The student, at least that all these words to say you know, where's the proof of a direct. Payment to Joe miss the point of the way that this thing is structured and, in fact, Joe wanted to be paid by saying pay hunter. Then you would you know that would be. It's like paying job! If that's the way that that the thing was organised. This is a long winded way of saying the a person in this whole escapade. Been charged is hunter by for these two misdemeanor taxicabs, but the actually the limitations isn't just running as to hunter it's running as to everyone, so by the time they make a case on Joe. If that ever happened, the case would be gone: The six year statute of limitations on tax The five year statute of limitations on everything else, so if they developed at and of like

failure to register as a foreign, agent or money laundering- or you know the various other things that that could come up here, those are all you know. Five you're, statute limitation, so they they ran yo and twenty eighteen hour I'd say you ve best with the good you ve already done: let's do the ugly debt, so maybe you can help me ex understand what I think are a hundred widens he's pretty legitimate frustrations with the justice department, handling of the plea agreement and how it imploded? You could explain why hundreds attorneys and now alleging that the government essentially misled the courts. the o j ink to deal came to them with the deal and then deal was scrutinised in court at imploded. What happened here because it looks really ugly yeah. Well, the thing they do

a little secret. His hunters lawyers are absolutely right. It does mean no word of joy. the leaping on hunter boy, Biden, side against the justice department, but look the hot the by, justice department and the Biden defence team? we're on the same team with respect to display deal and that's a problem for the public because the This is an adversarial system, the defenceless. Be looking after the defended the government lawyers supposed to be enforcing the law, and that didn't happen here. So. What happened? What did happen is that weiss understood that if he gave a detailed description of the

unity bath that he was trying to give to hunter Biden in exchange for to MR main, with the promise of no jail time that there would be public outcry about that. So the idea was to try to structure this agreement, way that would obscure the immunity term The way they did it was by negotiating the most unusual plea agreement that anybody has ever seen in that it was a the agreement, the two misdemeanor tax charges that left out the term that is most important next to what the defendant is pleading guilty to in any please which is the immunity term. Where general, the prosecutor will lay out in exacting detail exactly what the defendant now has jeopardy protection from now has immunity. Protection from now can't be prosecuted for anymore. they didn't want to do that because it was politically too difficult. So the

the thing they left out of the plea agreement is what's what's known: the completeness term- and I think this is what what the judge. stir was baffled by replay agreement always has a term in the lead paragraph that says this is too complete agreement of the party. There were no side deals. They were no oral understandings. There is no nothing. Everything is here in the four corners of the agreement and obvious The government requires that, because what off happens in cases. Is people plead guilty? They get sentence, they get more time than they think they're gonna get, and then want to come back and reopen the play or get their plea back and try to go to trial or of a variety of other so, what they are apt to do is to come in and say my lawyer told me if I plugged guilty that x would happen, and you always want to have this term in the agreement. That said, no, no,

That was an understanding it would have been written in here. But what we have here is a term that is this is all the understanding, but all the understanding between the party judge asked you in court. Does this agreement represents your complete understanding of what the government has promised to do here. So you want Have that term in every plea. Agree minutes it's! It's very important insurance for the government. It's not in the hunter play agreement The reason is they took the play, they took the immunity term that you would have in any play agreement and instead of putting it lee agreement. They snuck in, that the diversion agreement does a second agreement that is diverse There are measures still operative right. Well, they have reason to be alleging that they put the gun, reason they put the immunity term in the gunshot in the gun. Diverge an agreement is because the

plea agreement is something the court has to sign off on, because the what is going to impose sentence based on the plea agreement, the device an agreement? The court doesn't have to sign off on because it's just an exercise of discretion by the governments, just basically a contract between the government and the defence that the court doesn't to get involved in, because there's no pleasing enter so what they sneakily did- and this is wise- he put the imf did term in the debate an agreement which the judge didn't have to sign off on hoping that the judge wasn't gonna scrutinise the diversion agreement much, but what that met noah is you could put the completeness term in the play agreement, because the thing that hunters banking on and the real these pleading guilty is their immunity, that's in the diversion agreement, so that you couldn't say that the plea agreement contained all of our understanding, because the most important one was in the divergent agreement, and it was

The judge looked at this is so cockamamie that she said it s. Some basic questions she quickly realized that the reason that this bait, which was going on was wise, didn't want to draw attention to the complete sweeping immunity that he was purporting to give hunter based on the This too misdemeanor plea arrangement, and the other thing that wasted because he's incomplete weasel is rather than describe, charges that the government was waving, the ability to prosecute, hunt iran rather than described the sweeping nature of the play agreement. What he, did was he in corporate? it is by reference, a six paid think it six pages statement of facts.

statement of facts. As you read it, you could tell that this is hunter Biden spin on what he was doing from twenty fourteen to twenty nineteen and then, rather than firstly, say here, the crimes that we're not gonna, prosecute hunter for what they. What weiss puts in the in the big in the immunity term, which is in the diversion agreement, is that the government will prosecute hunter Biden for any acts that are encompassed by the statement of fact, that goes from twenty fourteen to twenty nineteen. So you it's left to the reader, to turkey, now. What the immunity is but obviously hunter would say that he's weeping we describe what his activities were from twenty fourteen to twenty nineteen, and What weiss saying is anything in the four corners of that five. factual recitation. if there's any crimes and there we can't charge them so

whole thing was. It was meant to obscure the immunity bath that they were good. Two hunter, The only reason you do that is because hunters lawyers were fully aware that that's exactly what the government was trying to do and the other thing. No, that's the icy. The of the cherry on top is the complete term that I That should have been in the play agreement wise put it in the diversion agreement, which The diversion agreement now has to turn. This is this: is the full entire agreement between the parties now because wise again is a weasel. diversion agreement does it refer in any way to the play agreement. So here you this diversion agreement that all its supposedly does it say we're not To prosecute hunter on this gun thing as law, he keeps his nose clean, probably literally, for the next two years.

then the gun charge disappears, but it's in that agreement. he puts the immunity he says get up and all with this we're attaching the statement effects. giving an immunity for everything. That's in there and bottom. It says this is the complete and but all agreement of the parties is no understanding, so anything the devil, should agreement. Does it refer to the play agreement? it's the plea agreement that collapsed. So now why is coming into court, saying the divergent agreement, doesn't count anymore because he was supposed to play to the to the tax charges and he didn't play. the defence lawyers, are doing with the prosecutor usually does saying seated little power at the end. That, since this is the complete agreement between the parties, this then in here about what happens. If the play agreement collapses, so hunters. Lawyers are exactly right and it may be that the government has already given away the ability

prosecute hunter on anything that happen from twenty fourteen to twenty nineteen. Because of the way that weiss wrote these agreements. And I imagine that judge nor raker make That way, because the government, rights- play agreements which means The law is that, if this ambiguity that gets construed against the government- because they are the the author of the agreement- and I also judge no rake realises that weiss and the prosecutors have been misleading the court. So I doubt gotta be inclined to be very kindly toward them in in assessing this are so, let's stepped back for a second, we are going to return to donald trump in very short order, but I want to put in a brief plug for national review plus I do

have any copy in front of me. This is a heartfelt appeal, but it's a necessary one, because we know what you're doing we oh, that you're open enough. Those incognito windows that you're using those browser hacks to try to get around our metered pay. Well, it's not worth it. It's just not worth it. there is so much national review produces for you everyday, including Andy, mccarthy's, prolific and insightful analysis bright, like tour Peace is for us a day. I don't know where you have time to do that and between all the media hits you do, but he does it and you really can't miss any of them. So, for just a few bucks, you can have access to all this and get rid of the headaches that you're committing yourself too. By trying to get around our meter pay. While you won't do it so just sign up to an hour plus you won't regret it, and if you did, you would read one of Andy's really important pieces which he put

it yesterday, it's entitled quote, are you aren't sorry? Are the trump election interference indictments a criminalization of speech and politics? It's a pretty live question and a really important one and you're right. it's really only the criminalization of speech. If your citing that speech, to demonstrate that it has made in furtherance of statutory crime, which is why the will indictment. Every other sentence says this statement was made in furtherance of a statutory crap. You say, Psmith didn't really do that, but Willis's indictment is more complicated. In your view. Explain yourself This always comes down nowhere to whether there is a crime or not, as you just alluded,. I had this issue come up a lot in connection with the terrorism prosecutions in the nineties, where we were being accused of inhibiting polluted,

the inhibiting religious, Liberty, inhibiting you know just general carr additionally protected speech, because a lot of our case, particularly against the blue, shake. Who was the leader of a group but incapable of doing anything, physical that you would actually further the activities of a terrorist organisation. Almost everything that he did was in the nature of speech to the east he was attacking america. It was protected political dissent, ostensibly and a lot of it was folded, into service that were interpretation of sharia law in interpretation of of koranic scripture, so This is an area I've had to to sort of navigate for russia for many years and the doctrine of law, that's a applicable. Is that

there is no constitutional power. Habituation against the governments, use of speech to prove a crime. the constitutional prohibition is when you make it a crime to utter the words in the first place. So if I, for example, said you know we try to pass a law that says you can criticise national review very utterance of the words, criticising national review would be a crime that the constitution forbids the only Where there is an argument about that, I think is the attitudes that involve spreading classified information, you know leaking to are not giving it, but the rise persons because you could, are you in that context that the act, while utterance of the words is the is the crime but

you don't ninety nine point, nine percent of situations that we deal with we're. Not can you about The criminalization of speech per se we're talking about the use of speeches, evidence to prove other crimes so that up the the example I frequently used to to its adoption. example, but it, but I think, makes the point is, if the mafia guys in the back of the social club. the boy says to the button guy whacked that guy there's no First amendment protection against using that statement, as evidenced in the market Trial and I never in twenty years and counted any defence lawyer who tried to make a first amendment, objection to that kind of evidence coming into a case so He too would always is if you're using speech or utah to prove a statutory crime.

and the reason I think, then, that smith has a better framework for this then willis does is I may disagree with psmith about these- her of the federal fraud laws, but there's no doubt that in his indictment he charges trump with the consumer, to defraud the government and the statements that pay up. He want The pudding in connection with that are now a criminal criminalization of those statements per se, for the fact that they were made he wants to wisdom is evidence that trumped up, What did the united states as he understands that statute and as the judge, the court? Maybe well apply it the way that he considers it so in each connection, where psmith wants to use speech he has

in a fight, a statutory crime that he says that the speeches evidence of whether its broad conspiracy, the obstruction conspiracy to civil rights conspiracy. I think the problem with with willis case is it not a crime to try retain trump in office and its doesn't bc. she calls a dumb conspiracy. Two unlawfully change the result of the election lawfully. The word unlawfully is not a talisman that you'll, like sort of stick it in to a sentence and suddenly something completely legal becomes illegal. The objective but that she has charged in her indictment is that these nineteen Well, what let's just deal with count, one cause, the other can't we ve covered and in it it just gets things morgan. using. I want to deal with count one cause: that's our overarching count, the the rico cap. So what

she describes that, as is basically conspiracy to retain trump and power retained Trump in power is not a crime. Now you can commit of. You can have a lawful active and commit a variety of crimes in furtherance of trying to to get the unlawful objective, but terms of using speech if you're gonna use speech to of a conspiracy. The thing conspiracy is the objective of the of the so called good spirit, has to be a crime. If it's not, the crime, you don't have a conspiracy very simply accounts Era is an agreement between two or more people to commit a statutory crime. So ok, so let's go through some of the sum of the indictment that I think meets your criteria and some aspects of it that I think are a little bit murky, are based.

in the you just laid out, so I think I'm reading your right, for example, trumped discussing a draft speech on october thirty, one preparing to claim victory and alleged voter fraud in advance of the results of the election is speech not in furtherance of a crime. Correct likewise generate fifth trump is tells the vice president that rats ratzenberger told him something that and actually down speech protected speech right where it gets closer to a crime. But it's not, charged as such. So in theory there could be an attorney tat protection of section, a thousand and one which is what makes it a crime to make a material, false statement to the government, In connection with a matter that under investigation but you'd have to get into a hole,

about whether spent was conducting an investigation. I dont think its I been interpreted noah as this thing, where, if government a fish Those are consulting. With each other and one of them, says something: that's a fear that that's it that's a false statement. I've never seen it applied that way. Ok, so that's marcie! Now it gets even murky, then so Donald John trump quote: soliciting acting united states attorney general Jeffrey Rosen, and acting? U s deputy eternal attorney general richard donoghue, to make a false statement, alleging that they were quote significant concerns that may have impacted the outcome of the election and multiple states, including the state of georgia, using them mature of the department of justice to issue statements that the attorney general and deputy in general knew to be false and are perhaps are quoted in this indictment telling the president were false. So. Here is the question: what is what's the crime.

because that, if the issue is, he he's trying to get them to say things that were fraudulent, but wasn't fraud to obtain money or property than you run into this whole question of. Does the free on the government provision cover you don't non financial fraud or not, what will get we'll get today definitely want to get to that yeah. But I did anything so you're my conflict over the last few weeks right, but I think the thing is. if it's in further, if the statement is in furtherance of a statutory crime, if you can identify a statutory crime which Seeing the indictment by the way then. It then you're not penalizing speech, but let me give here's a simple example: but he goes into congress, and I think this is

big thing in her indictment Rudy goes into the state legislature and argues to them. nonsense about. You know statistical, irregular voting. You know x, number people would dad x number people were not registered properly, He makes that argument to a national committee. As I read the georgia statutes congressional committee, is not a government agency, even She's charge that is as a full statement and rudy not placed under oath now there's a crime in georgia law that is meant to be applied to people who lie to congress and it's called full swearing So the idea is, if, if it's a proceeding they put you wonder oath, you lie, then that's not criminal! missing political speech, that's perjury or its its lying under oath under under georgia law,

In the rudy situation, they didn't put him under oath, and I don't think rational committee is, is a cut, isabel government agency for purposes of the statute, so she's trying to make a couple of leaps in order to prosecute him, but I think if you know it big its political speech, because They never put it in a context where there's an actionable crime. That's at stake: if they had put him under oath or if he had The state, the same statements to an investigative agency in the course of an investigation, then This would be actionable crimes and you could use the same. Words is as evidence and want to be argumentative, but a congressional body is an investigative body. I mean it doesn't you're suggesting that this only applies. to executive branch agencies on being a nerdy government lawyer here, for I saw

the first thing you have to always look at with these statutes is the text and then with respect to the text. If in the provision, there's a dead the where congress has said what it means by an investigative agency. You go with that. If not, then you have to do have to research the cases and see what provisions yeah what what interpretation the courts have put on it like, for example, there's a controversy. We ve been talking a lot about section three of the fourteenth amendment, which is suddenly our topic. The last couple of weeks, there's a provision in there, what that's a catch. All that says, and the reason the reason I'm curious about this is that the section three disqualification omits, the president and vice president, you can do if I like electors for president and vice president, you can disqualify senators so the house of representatives and then there's

catch all at the end that talks about officers of the united states that's what a lot of the scholars a hanging their hats on, but there's some there's. This push back in the jurisprudence, stairs or cases that stand for the proposition that the president is not an officer of the united states that the president is the one who were points offices of the united states, he's not one himself so just lay that out, as time. Something like this comes up. You'll have to look at I mean it. You yoke right to seize on the idea that that it may not make you know abstract intellectual says to distinguish a congressional thus the gate of committee from an executive investigative body, but The statute does all the cases those you have to go with that one. one, could I want to move on and squeeze some of the fraud stuff before we have to go? This one seems open and shut to me and explain why I'm wrong cheese chess brow can't jasper idle

pronounces name of only one, neither cheese brow emailing giuliani with they plan to violate the electoral counteract Johnny spent admitting in writing a rather speech that his plan was to violate the easier, but it would be a quote we might or violation of the law. How is it literally conspiring violate the law. Well, I think what eastman would say the context of that is that if you look at what they were doing, they were not, but they were already not literally applying the electoral can act. don't remember exactly which provision, but everybody agrees. That was something that they were doing. That was a violation of the electoral count act to begin with an income. Advertisement says that was about as, like you know we're already down the road of violating it. So we're talking about something, that's marginal, compared to what we are already doing right. Here's context, without is just

just gross. I know it's just grocer, not illegal, but in there's this digression in the end, the indictment alleging that chinese man wrote down in this in this memo that the judiciary should not hold hearings on the electoral counteract because of a quote. Invite counter views that we do not believe khans should constrained pence or grassland chuck Grassley that the rank chairman of the EU your committee committing time in the exercise of power, but also saying that we should quote was put better for them too. act boldly and be challenged, since the challenge would likely lead to the court to denying the review in a non judicial political question grounds. So he's saying this is a political question, but we should thwart the political process and answering it because there could be counter views and we should just charge ahead with the courts, because the courts won't answer it, because it's a political question, but we're going to stop the political process from answer right? In other words, regrets well yeah he's he's. Doing

unfortunately, I think in this context- and I- and I think this is why this is why. The political system is supposed to take care of this, not the legal system. Politically, that's gross violation, but then this is, the president and everybody is working for the president. The president takes an oath to faithfully execute the laws and to and to uphold the constitution that see if their planning to to subvert it. That way, the violation of his oath. It's a political crime regard of whether it's a cognizance, full legal crime, but the thing once you get into the legal system than all the bounces, the boy go to the defendant. if there are any, if there's any ambiguity or looseness or anything, and you know I think I think of another statement that dumb that spain made where he was

asked. I think it was by one offences guys if the supreme court Gotta look at this. What would they? How would they come out and east? first said seventy two and then he said now you know on so we'd lose nine nothing. If this ever went up but but he would tell you is he was the context of making an argument that this was not just disco, so didn't matter if the old nine justices agreed with, or disagree with them. Their staff energy was that to frame this as an issue that the court shouldn't take up in the first place. So what bother them that the court might run against them if they actually got to the merits of it again, like you just said, I think that's disgusting in a lot of ways, but it's you know they were trying to do. The right thing know where they were trying to win. they were trying to win in a way that they thought they could sorted, navigate the the jeopardy shoals.

so I have one final thing that I wanted to touch base with you on and then a little bit of runway to set up this question and I'm going to rely on the sophistication of our listeners, so we're not going to define a lot of our terms here cause I think, we're relatively familiar with some of them, especially when it comes to what your interpretation of a fraud against the government consists of being relatively material and the conflict that has, with some still active president's supreme court precedents century old precedents that are justifying the argument against your your position. So I want to pick up on a conversation that you had with Jonah Goldberg on remnant very important conversation if you haven't listen to a go, listen to Andy's appearance on Jonah show and without putting words in your mouth and stop me if I'm miss characterizing your remarks please. But in that conversation you allowed for the prospect that a jury and a criminal court may be convinced

the definition of fraud that pertains in these live precedents or that they may be convinced to hang on a conviction based on the notion that the courts have already suggested that fraud against the government could include obstruction and maybe disregard the fact that this Court and others have narrowed these terms to material concerns. Let let me just savvy first, because I want to make sure I understand. Are you saying that, I think I said to work to Jonah was that I could see, judge shotgun in instead during the jury and in the way that she rules on the case sang you know I heard all the stuff that the supreme court may have set a month ago about fraud in general, but going with these nineteen twenty four lie. Of cases that directly do with the statute and I'm gonna Herbert it that way and the case they not got a case may not be appealed b.

the trial. She doesn't have to lead an appeal happen, so she does to do that could rule smith's way and she could instruct the jury. they could convict on that theory. So that's why I want to go to the appeals process right, as you subsequently entertain in that conversation subsequently entertain the idea that a pellet courts might not see your way either, and even the supreme court if it got that far justice is like Cavanaugh and roberts might get a little queasy about nullifying a verdict, because it gives trump a pass, and this was such an egregious violation of the social compact can see that right right right, but following your logic, in that case, we must established a narrative of corruption that is profoundly extensive. If roberts were to do something like that, it would be the equivalent of a bill of attainder. It's far worse than his decision, and the care case it subsumed in this narrative, jurors, judges, injustices alike, into this corruption narrative. So

are we not, on the basis of us idea, establishing the idea that The system is shot through with corruption, just because a legal theory didn't pan out, I mean, aside from all the alleged criminal malfeasance aversion. How does that make us different from johnny smith? Well, I mean, I, I think you could you could problem We say that what you have just sturm diagnosed already exists for for example, there was a very strong legal argument for throwing out I'm a based on commerce clause jurisprudence. an animal is your in which contradicts itself right. That's because the guy who wrote the majority opinion was in the majority until he wasn't and many went with the other side. But the thing is what real justifies what roberts did there,

the then he'd, he didn't want supreme court of the united states to be the one to throw out obamacare any basically it'd, hey political system. If you want to deal with this, you deal with it. We are not the ones who we're gonna do this now, so I I think they make those kind of political judgments from time to time. In any event, I think they do too, but that's not a justification for what is functionally a corruption of the process well, except the you'd. Have you don't look? There's a long tradition in supreme court jurisprudence of courts, reasoning backwards, you don't like deciding how they want to come out, and then and then reasoning backwards, so Let's say your roberts and you decide, you, don't want to throw out the conviction of donald trump if it's been cited by a jury and even if we

that it runs a foul of our last interpretation of the I'd statutes? And even It runs a foul of the bradwell case that our friend damage mclaughlin points to wear. The supreme court flatly said that this doctrine was not meant, Fraud on the united states is not supposed to apply to elections so that the context that it is supposed to apply it Let's say they ignore all that and say you know we're going to say two things. Number one. We have this case from nineteen twenty four, which is our precedent. This is not one of these things where the core Appeals is freelancing on fraud means this is our own president and secondly, there are important texture, differences between sex in three. Seventy one and the other fraud statutes could be read to say that

when they enacted three, seventy one at least textual we they meant to. at more than money and property, and then they uphold it now A lot of people would say- and I probably would be one of them that that was just go- smoke screen and, and they decided they Didn'T- want the supreme court to disturb Donald trump's conviction, but legal scholars would look, it would take. It sal value, what, roberts reasoning was if its roberts, I hate the I hate, hang in the guy before he's even committed to cry, but I just don't think This kind of thing is that unusual, Noah and I do think them pledge brought this up, though, because I think the most listing thing about my conversation with Jonah in this regard. And the one. I wish I push back on a little bit more, but I did get this it a little bit and I'd like to talk to you about this again, but one one.

jonas says, and I totally get this as as a matter of just like how p will feel about this. Is that the cold at the bottom of all. This is trump and even if the, was that they're trying to apply to him or not a perfect fit the bill, The ball would go to the system because he's the one who destabilized everything to the extent that people are now being put in the unkind What position of having to like stretch staff? suits and yet down novel avenues. It's because trump put this stabilizing pressure on the system and I have to. as a political matter and, as just like I personally feel about it. That's true. but I go back to my young I was so the commentary guys this about the other day.

One time- and this was not a cast wishes- should also listen to Andy's episode. Vote has called it happened this week earlier this week. Yeah yeah is but but I would I was telling them that, like fence lawyers from time to time in my terrorism case, used to do something that really you know what would push beyond the things the guidelines that the court had for. You know, we deal with information and leading to the press and all the other stuff. And one day I came out with smoke between my coming out of my ears demur think that something be done about some something wrong sure. I did this once a week of about something that defence lawyers were doing, and you know, judge me became a used. Usually just would my The seed later attorney general Michael lucchese, but judge became the presiding judging the case. He would He would sometimes let me read for euro fifteen or twenty seconds and rolled his eyes and say tell me he has a dirty mine. Just tell me what he did. but on this occasion music,

he looked at me and he said what you re Four is poetic justice and around here we only do prosaic justice, and I actually thought it stuck with me all these years, because it's really it's really a brilliant observation. What I push with Jonah was you know, Jonah talked about during suffocation and he's right. system does allow jury notification, but it only allows for purposes of acquittal, supposed to happen in the justice system is that the defence gets the benefit of every ambiguity. And every close call. So if it happened that tromp was dubiously convicted, the basis of or convicted on the basis of a dubious interpretation of, say, fraud. That's supposed be something that gets fixed in the appellate process. That's not

supposed to be something that they say. You know politically. This is this is just potato! That's too hot for us Andy! I could talk to you about this for a whole nother hour. Fortunately, we have already gone long and thank you listeners for indulging us. That is going to be all the time we have to hey, you've been listening to a national review podcast, which has been produced by the incomparable. Sarah shoot e. Thank you Andy. For your time, everybody go check out. The website read what he writes on a daily basis. You won't be able to navigate the political landscape if you don't. Thank you very much for listening. Rich will be back next week and we'll see you then,