Andy McCarthy On Trump’s New Legal Peril And Jack Smith’s Next Move

The following is an edited transcript of a special Labor Day edition of Morning Wire. Daily Wire Editor-in-Chief John Bickley sat down with former federal prosecutor Andy McCarthy to discuss what comes next for Donald Trump in lawsuits filed by Democrat prosecutors.

The “lawfare” effort against Donald Trump is not dead yet, as Special Counsel Jack Smith files a revised indictment and multiple appeals loom. While Democrats still hope to take down the former president, Team Trump says they’re confident that the Supreme Court’s presidential immunity ruling has doomed the cases against him.

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JOHN: Joining us now to discuss is former federal prosecutor Andy McCarthy. So we’ve had some new developments in the “lawfare” effort against Donald Trump. Special prosecutor Jack Smith has revised and refiled charges against Donald Trump for election interference. Can you tell us what exactly we’ve just witnessed?

ANDY: Well, I think what we’ve witnessed is probably, from a prosecutor’s standpoint, the cleanest and most efficient way to deal with the Supreme Court’s opinion in the immunity case. Remember that when The Court decided the immunity decision on July 1, which held that the president has absolute immunity for core executive actions and, at the very least, presumptive immunity for everything he does within the ambit of his executive power, The Court basically directed the lower Court, which would be Judge Tanya Chutkan in Washington, to do a searching examination of the allegations in the indictment to sort out what allegations are based on or implicate official acts of the presidency and which ones don’t. Long story short, Smith was supposed to, by this coming Friday, make his submission about what he thought the case would look like going forward. And I think he decided rather than make a submission on Friday, he would simply supersede the indictment on Tuesday. And what he’s done in superseding the indictment is take out some of the allegations that can’t stand after the Supreme Court opinion. I should be clear, he hasn’t taken out any counts, like he hasn’t taken out any charges, but there are certain aspects of the evidence that can’t withstand the Supreme Court’s opinion and had to go, so he pared them down.

JOHN: And that’s because it relied on evidence connected to Trump’s official duties, is that correct?

ANDY: Not just his official duties, but his duties at the core of his article to constitutional executive power. What Chief justice Roberts said in the majority opinion was that that — Trump’s control over his subordinates in the executive branch exercising law enforcement authority, which is a plenary power of the executive branch — is something that Trump has absolute immunity for. So those allegations had to come out of the indictment.

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JOHN: So where does that leave things now? What are the next steps for this case?

ANDY: The first thing that everybody is most concerned about, and I think rightly so, is — what’s the impact on the election? We’re seven weeks from the election where we’re going to have a new president on January 25. So I think this is really a big nothing. Because what people need to retain as they think about this is that the first thing that Judge Chutkan has to do, no matter when it’s done, is examine the superseding indictment to determine which allegations get immunity in which don’t. Whatever she decides about that. Immunity is one of the few issues in federal criminal law that a defendant is allowed to appeal pretrial. So whatever she decides, even if she leans in Jack Smith’s direction, Trump is going to be able to appeal that to the D.C. Circuit and then ultimately to the Supreme Court. So that issue has to be decided first, and then there are a slew of other issues that would have to be litigated before this case could get anywhere near being able to go to trial. So there’s no way that happens between now and the end of next January. So then we come to what happens after we have a new president. Obviously, if Trump wins the presidency, I imagine if he gets sworn in at 12:00, by 12:01 Jack Smith will be fired. And they’ll try at that point to dismiss the case. There may be some complications with that we can talk about. Obviously, it’s one approach if Trump wins, namely the case goes away or he does his best to make it go away. And then the other question is what happens if Harris wins? You would think, and I think this is probably right, that Harris will just retain Jack Smith and let him carry on and then, however long it takes to try the case or litigate these pre-trial issues, and then ultimately have a trial. He’ll be able to be back in business doing that. The alternative, which I think would be very sensible – but it would shock me, unfortunately, if Harris did that – would be for Harris to say, “Look this lawfare campaign has run its course. It hasn’t been good for the country. I’m supposed to be the candidate who’s making a pre-clean break from the past…” to the extent that she has appeal. It’s because she’s not Trump, she’s not Biden. And it would be a smart thing, I think, for her to say, “We’ve looked at the Supreme Court’s immunity decision, and it’s a very good decision for the executive branch. We don’t want to continue with a litigation against a 78-year-old former president that has the potential of cutting back on the executive branch’s immunity interests.” And if I were her, I would drop the case on that, for that reason — because let’s face it, the Democrats only ever brought this in order to have an impact on the election. Once the election’s over, does she really want this headache?

LISTEN: Catch the full interview with Andy McCarthy on a special Labor Day edition of Morning Wire.

JOHN: I can imagine the blowback from her own party if she did something like that being very severe. And the picture you’ve painted is, look, there’s going to be inevitable, appeals, immediate appeals from the defendant, from Trump’s team, it is allowed to move forward, the appeals process, et cetera, takes place, does this end up in the hands of the Supreme Court again.

ANDY: Yeah, it’ll end up in the hands of the Supreme Court again. And I think a second issue will end up in the hands of the Supreme Court, which is the question of whether, Jack Smith has been properly appointed under the Constitution. So that’s another, issue that’s out there that’ll have to be resolved pre trial. And I, I think it’s important to make our listeners understand there’s a difference between, obviously, immunity and guilt. If the courts were to rule against Trump on at least some of the allegations in Smith’s indictment, that is to say that those allegations are based on private conduct, not official acts, and the indictment can go forward as a prosecution, that wouldn’t mean that Trump is guilty. He still has a lot of arguments to make, with respect to the legal validity of the charges that have been filed. And even if that, even if he prevails there, you still have to go to trial and Smith still has to prove the case beyond a reasonable doubt, including proving. Trump’s intent to commit fraud, which is, it may be harder to do than, than the prosecutor seems to think. So there’s a lot of rounds to be played here yet.

JOHN: And you brought up a key issue, which is whether or not Special Counsel Jack Smith was actually appropriately appointed. Where does that stand now and where do you see that going?

ANDY: Yeah. Well, it’s very interesting. So, the Florida case, the Mar-a-Lago documents case, was dismissed by Judge Aileen Cannon in what I thought was a scholarly 93 page opinion. No matter whether you agree with her bottom line or not, it’s clear that she worked very hard on it and took it very seriously and did I’d say better than workman-like job on the opinion. But she has found that Smith was not qualified to be special counsel because to be, to wield the kind of power a special counsel has you have to have one of two conditions: Either you have to be appointed by the President and confirmed by the Senate, which Smith was not, or you have to have a position that’s created by an act of Congress, a statute. Smith, instead, was appointed under Justice Department rules and regulations that were promulgated during the Clinton administration. He also claims that there are a slew of congressional statutes that uphold his appointment but when you parse them carefully, I really don’t think they do. More important than what I think, Justice Clarence Thomas, in his concurring opinion in the recent immunity case, raised this very issue and went through those statutes and clearly doesn’t think that Smith is properly appointed. So, instead of doing what I think he should have done — this is Attorney General Garland — which is simply shift Smith, transfer him so that he’s under the supervision of the Biden appointed U.S. Attorney in South Florida. Then you make this whole issue under the appointments clause of the constitution go away and you could be up and running with that case again in five minutes. Rather than doing that, what he’s decided to do is appeal to the 11th Circuit, which I think is a peculiar choice because I think there’s a very good chance they’re going to lose in the 11th Circuit. In the meantime, the same issue is going to be raised in the Washington case in front of Judge Chutkan. I think in that case, she’s going to uphold Smith’s appointment because, regardless of whether she thinks Judge Cannon was right or wrong, Judge Cannon’s decision does not bind Judge Chutkan. Chutkan has to follow the law of the D.C. Circuit, and a few years back, the D.C. Circuit upheld a challenge on similar grounds to the status of Special Counsel Robert Mueller in connection with the Russia investigation. So, she’s going to uphold Smith’s appointment. I think the 11th Circuit, and I think the D.C. Circuit will uphold it as well, I think the 11th Circuit will agree with Judge Cannon that Smith is improperly appointed, which means that will land in the Supreme Court’s lap too, because when you have a dispute, In the circuits over,  an issue of this importance, the Supreme Court ultimately has to decide it.

Credit: Photo by Michael M. Santiago/Getty Images.

JOHN: It sounds like a big mess, a sort of a paradoxical moment there. To put a button on the lawfare campaigns against Trump, we’ve got the Atlanta case, and we’ve also got the hush money case that’s being appealed. Just in summary, where do we stand with those two cases?

ANDY: Well, the Atlanta case is a clown show. I mean, at the moment it’s in complete suspense because you’ll also have immunity litigation in that connection. But before you can even get to that, there’s a big litigation under state law regarding whether Fani Willis, the prosecutor, has to be disqualified from the case. The lower Court has already disqualified the prosecutor-boyfriend that was involved in the case. And that decision, I don’t think made a lot of sense because it seemed to me that you could make an argument that both of them should go or neither of them should go, but having one go and the other stay doesn’t make much sense to me. So the Georgia Court, the Appellate Court, is going to hear arguments in that case, but not until December. So we’re a long way even from deciding the disqualification issue, and then they’ll have to figure out all the immunity stuff. So I think that case isn’t going anywhere. And if Willis ultimately gets removed, it could get transferred to another prosecutor who decides to drop the whole thing, which would be the best outcome, I think. As far as the Manhattan case, Trump is scheduled to be sentenced on September 18 on the 34 counts on which he was convicted at trial during the spring. But that case has now been complicated by the immunity issue as well, because I think, quite recklessly, the prosecutors introduced during the trial evidence of Trump’s official acts. I think it was foolish of them to do that because they didn’t need that evidence to prove the charges in the case but they did it anyway, even though they knew the Supreme Court was considering this very issue. So the problem they have is that they have this evidence in the case and the Supreme Court has said that the immunity evidence shouldn’t have come into the case. Trump did object. So right now the schedule is Judge Juan Merchan is supposed to decide the immunity issue on his schedule on September 16 and then Trump is supposed to get sentenced September 18. But the problem Merchan has is Trump has a right to appeal the immunity ruling. So even if Merchan rules against him as everyone expects, he should be able to appeal that to the Appellate Courts in New York and ultimately to the Supreme Court. And even the District Attorney Alvin Bragg has conceded that Trump has appellate rights and therefore has suggested or agreed with Trump that the sentencing should be postponed. As we are speaking today, Judge Merchan has not yet postponed the sentence, but I think he really is going to have to.

JOHN: Andy, thank you so much for talking with us.

ANDY: My pleasure.

JOHN: That was former federal prosecutor Andy McCarthy and this has been a special Labor Day edition of Morning Wire.

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