Wait, did you say Sunderland. Sunderland? Am I having a stroke?
Ask not what your country can do for you, ask what you can do
for your country. Mister Gerbatcheff, Tear down this wall, read my lips.
It's the Rikoreshete podcast with Charlie Looks sitting in for Peter Robinson, Rob
loong Us. Here. I'm James Lonnox and we're going to talk to Andy
McCarthy because if there's an indictment, insign the doctor Andy so let's I was
also podcast charging Donald J. Trump conspiring to defraud the United States, conspiring
to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. They
were a disaster, they were a disgrace to our country, and we've caught
them. We've caught them all. Welcome everybody. It's THEE Podcast, number
three hundred and fifty three. How do we get this far? Simple?
The raw power of ricochet dot com rules on decade to decade. Go there,
by the way, take a look. You won't be able to see
the member feed, which is where so much fine happens, because maybe you're
not a member, but if you sign up, you'll be the keys to
the kingdom will be granted, and you'll see exactly why we've been around for
so long and done so many wonderful things, with the help of the founders,
Rob Along and Peter Robinson, who is not here again. He is
off, yeah, an anabasis of some sort, and we'll hear about them
that soon. Don't worry, he's coming back. But sitting in his place
in his stead is Charles A. CW. Cook, who, of course
recently went on Ricochet to tease five point oh, the new version which is
coming soon and I can't wait it. Maybe we'll hear about that at the
end of the show. But first, Rob, is it really five point
five point? Did I miss a point zero or something? That I miss
a point something? I thought it was three point oh, but I guess
no, No four was the blue was the one that we have now at
one point? Of course? Was? It was entirely more so. I
remember one point oh, believe me, it's got my blood and one point
oh, that's right, and number doesn't work anymore. That's exactly what's you
find so sclerotic and clotted with cholesterol. I remember two point which was all
ticker tape delivered by pass by messenger pigeon. But that was great anyway.
Before we began, Rob said, you wanted to throw a curve ball.
Yeah, okay, I wanted to confess something to my to my friends on
here and my friends listening. Uh. And I you know, I just
want to. I want to. I want you to tell me if um,
if this I mean, I'm just telling you my honest reaction. Absolutely,
how I read this new story and you tell me if I'm a hideous
race sister? Done? Uh? Two US Navy sailors were accused, um
and arrested, I think of passing secrets to China. So they're arrested in
California. They arrest the arrest of Wednesday. They're in California resid Wednesday.
Separate cases accused of passing sensitive natural offense information and military secrets to Chinese agents
can exchange for money. And I scrolled way down, way way way down
in the article to see that one of them was the machinist mate named Jin
Chow Way also known as Patrick Way and um no way uh yeah, and
the other was a petty officer named when Hang Chow and when I read,
also known as Thomas Chow or Zoo. I think the zh Zaoum, And
when I read that, I went, oh, of course, of course,
it just I mean, I'm not I'm not saying that I was right
in this response. I'm not saying that, oh, I have a I'm
just saying that my natural response when I read those two names of those two
US naval officers charged with espionage for the Chinese government, my initial reaction was,
yeah, I figured that. Then my second reaction, wait, don't
tell me I'm not a racist yet. My second reaction was, shouldn't they
have been keeping an eye on those guys? Well, that would depend on
a lot of things. I mean, if in the nineteen fifties you saw
that a sailor had sold nuclear secrets to the USSR, you might think,
I wouldn't be surprised if this is Ivan Ivanovich, you know, with something
like that at the bottom of it, because you would think perhaps they had
gotten to him through family connections. With the rest of it, that would
not be an unreasonable reaction. As far as keeping tabs on them, I
would say no, unless there was some reason, unless they had family ties
back to unless there was some hint that they had connections to the season.
Otherwise I do we do we look at the guys who've got Venezuela and uncles
and U and put them under the microscope, do we? We're not under
We're not in a global competition with Venezuela. Last I check, was not
a global hedge of on Um. I don't know. I mean, yes,
I guess so your answer is yes, I am native born Americans who
happened to have a particular ethnic heritage. Do not seem to be automatically suspect
unless you got something that tells you keep an eye on that guy. Yeah,
okay, no, you're quite right, A right. It seems to
want to be a racist here. I don't. I really don't. I
just I was. I was a present to my instant reaction, and I
wasn't proud of it. I said, okay, I'm not gonna pretend I
didn't have his reaction. And then when I didn't pretend I had the reaction,
I thought to myself, Well, I mean, I know it's complicated,
but I mean I was not surprised, And was I not surprised because
I am, um, you know a bad person? Well do I is?
There is there is there something? I mean and now I'm going to
complicate things by adding to it something that happened some a statement that was made
in July twenty fourth by the CEO of Raytheon, which is one of the
biggest defense contractors in the country and M Raytheon CEO Greg Hayes said, Um,
there's no way to full supply chains out of China. So Raytheon one
of the biggest defense contractors, high tech defense contractors in the country. Um,
it's going to continue to get most of it's a lot of it stuff
in China. Okay, that's all. That's all I want to say.
Well, he's wrong. It just takes time. It takes time, money,
and will like the rest of it, Like every single bleepity, bleep
fargin problem that posts this country, it takes will get a bit of time,
but most of the desire to do something. Um. But I guess
we're in the era of throwing up our hands and shrugging our shoulders and saying
it's a big job. I can't do that anyway. Charles, are you
going to say, well, I don't think you're a racist drop I think
that No, you asked the question. I think that this all depends on
the next step. So if the question is are you a racist for not
being shocked that the two people within the US who were passing secrets to the
Chinese were themselves of Chinese origin, however far back that goes, that's not
racist at all. If your next move were to say, bring back the
Chinese Exclusion Act, it wouldn't you didn't say, I think that this is
in a sense of a piece with the plot of Oppenheimer, which I saw
at the weekend. That was terrific. The movie was admirably nuanced, and
I left it thinking, well, of course the US government was suspicious of
Robert Oppenheimer because he had been a communist or communist adjacent. Right now,
if the conclusion from that is therefore we should throw all communists in prison or
McCarthy was right about everything, Well, that's something else, isn't it.
But yes, of course they were worried about people who were communist adjacent or
communists themselves, because do you know who actually spread all of our secrets to
the Russians? People who are communists or communists Jason, So I don't think
it's unreasonable to say, well, if we are going to have a pipeline
from the United States to China, it is more likely to be populated by
people who have Chinese names than it is by say me, well, that
seems reasonable. The trick always it's not to overreact and open interman camps.
Right, He's always right. I mean, it is not racist to be
not surprised. For example, when somebody who had that terrorist incident in far
Going, North Dakota, where a man open fire on the police with automatic
weapons, and it was not completely surprising that he hailed from the Middle East,
and then people are in rehder to were saying, oh, you know,
all the races are going to be yelling about this look. And they
had a picture of the guy, and he didn't look particularly clichede Syrian,
but I'm not sure what a Syrian looks like. Point was not his ethnicity.
The point was his origin, I would say, and the fact that
he came here from Syria in twenty nineteen and perhaps did not take to the
customs and folk ways of Fargo, North Dakota as well as he should have.
I mean, we all make these assumptions, these calculations a million times
a day, and of course everyone's had their implicit bias tests or you're toy.
I mean if if you guys had implicit biased tests and not. Yeah,
okay, Well, the one that I like to say is that we
were showing a whole bunch of pictures and we were asked to make assumptions about
them, and everybody's very nervous. Of course, if we get the wrong
marks, we think we're really going to get something put down in our final
And they show a man who looks like, you know, he looked like
Bob from Twin Peaks, and he had long hair and in a scary face
and a leather jacket, and he was holding in his hand a bar like
like a metal wad. So what assumptions did we make about this? And
I have everyone is, well, he's kind of a scary character and maybe
I'd crossed the street. Well then they zoom out like that and it turns
out that the bar that he has in his hand is the handle of a
baby carriage, a prem and there's a there's there's a he's pushing a carriage.
It's like, weren't you stupid to assume what you did based on what
you saw? And I will say, look, I'm not walking around with
a toilet paper tube up to my head staring at people through a small little
aperture. I would apprehend the totality of that man at the time and would
be able to tell you that he's no threat whatsoever, because he's gone baby
baby herman from who you know, from the Roger Rabbit that movie is gonna,
you know, pop out with a stoke in his mouth and wake us
all with a machine gun. So much money to have been in that room
with James, I mentioned change. James said, it's such a dumb test,
right. That's the equivalent of saying, James, tell me there is
a man and he wants to kill you, what do you do? And
then you say, I run away and they say, ah, I meant
kill you with kindness to Rachel stupid now like, well, yeah, now
you've changed the entire premise of the question I do. Yeah, I was.
I was unpopular with them from the start because when they asked me what
my ethnicity was, how I identified I said North to Codon because I think
that's much more of a guide than anything else that I could possibly say.
Then we were given legos and we were asked to make something out of the
legos right, and there was red, blue, yellow, white. And
so what I did, because I have preference for Mondreon like compositions, I
built something that was that segregated the individual colors in the structure to make it
esthetically balanced. And I had to explain to the person when I said this,
do not take this as a metaphor from my desire to wall off ethnicities
into separate groups or physical localities in real life. I just think it's more
play. I mean, I felt really, really nervous about the fact that
I have expressing an esthetic pleasure with Legos and that somehow this spoke something about
me. It was all just ridiculous, that the whole notion of it.
And I'm sure we're gonna have to go through it again if my boss and
get ahold of this anyway. So Rob, there you have it. Um,
I guess we give you a pass, but you know we would modified
limited hangout pass. I guess. I was just thinking that phrase as I
was walking back from the drug store with a sack of meat balls. Honest
to god, limited modified hangout. I was thinking that that's what they're doing
with the Biden and the heat. Well, of course, of course he
met with a son about business. You know, of course his son made
money from which was not what we heard before. How are you guys taking
these sort of shifting narratives? I mean, the four pinocchios was granted to
Biden by the Washington Post just a little bit ago, which is everyone saying
the signs that the narrative is cracking, walls are closing in. Not sure
about that. But what do you think is the next step here? What
are we looking for in him to come well? I mean we should say
that we're you know, our guest today will be Andy McCarthy, so we'll
be talking about the really big story that's with him, So we're not really
we're avoiding that one. Um. Yeah, look, I uh, there's
so many weird things about the Biden family and Biden presidency. UM. And
I just don't understand. Um, maybe they maybe they've got some genius plan.
I don't understand why with the seventh granddaughter they didn't make it a big
deal. I don't know why they're embarrassed by this. This seems like it'ld
be a heart you know, warming moment. I don't understand them. The
strange protection of Hunter Biden. Um, I don't really get it. Like
there's a million things they could do to sort of neutralize that and to actually,
you know, put it in context if people feel a little bit sympathetic
to this guy, I mean, not to Hunter Biden, but to his
dad. Um the weird uh sort of Jersey City mafia style kind of not
Tony Soprano, but like, you know what when the Sopranos when they were
all involved in like the little stuff that got ugly and nasty. But it's
like over like, that's what this feels like. And I don't I don't
understand how. I mean, I'm always surprised at the incompetence of the Biden
political team. It just always surprises me because there is there is so much
there that they need to do, and there's so much work to do,
and there's it's such a you know, a target rich environment, and their
political operation is so incredibly amateurish and incompetent. It makes me think that,
you know, honestly, it makes me think that that's a lot worse than
we know. That this influence peddling is a lot worse than even our fevered
anti Biden imaginations can conjure. I'm not going to make the same mistake as
I decried with the Russia Gate nonsense and get ahead of myself, or make
accusations or insinuations that aren't supported by the evidence we have. But I will
say, Okay, I will, but I will say that what we currently
know about Hunter Biden and Joe Biden's involvement with his business is substantially worse than
anything we knew about Donald Trump and the Russia Gate allegations. Substantially worse.
And yet I won't say inexplicably because we all know why. Infuriatingly it's being
ignored. I am so tired of reading nothing about it. If that makes
sense. How many times did I sit on television in twenty seventeen, twenty
eighteen, with everyone around me on CNN or MSNBC or what you will,
hyper ventilating and thinking, you know, I'm not going to sit here and
say that sounds like a load of old crap, because if I do that,
I will lose my career. It will be played every time I say
anything if I turn out to be wrong or I didn't do it. But
I sat thinking, I think that's unlikely, and I said I don't know.
I would wait to see the evidence. Of course, if it were
true, it would be very serious. But I don't think we have any
evidence. This is America. We know so much more that is a problem
in this case, and yet it seems to me no one is deliberately,
no one in a position of power in the press is doing anything about it.
And it does matter because people think, oh, well, why doesn't
the right just build you know, these great investigative reporting teams. I think
it's a long term plan that is actually correct. I think the right has
absolutely dropped the ball on this. But you can't do it overnight. You
know, the expertise at the Post and the New York Times and ProPublica announced
where is necessary for this one and can't be matched except maybe by the House
of Representatives. You're wrong that the press isn't doing anything, isn't saying anything.
One hour ago, Hunter Biden businesses socially testified he had it's no knowledge
of wrong doing by Joe Biden, you would say today, Devin Archer testifies
Joe Biden never talked business when put on the phone Washington Post, Devin Archer
said the opposite of what Republicans claimed. So there it is except I'm sort
of I'm reading a lot of these things. I'm reading some notes about barisma
and the rest of it, and it seems unlikely how that this concatenation of
calls and appointments and money and prosecutorial firing and the rest of it does not
smell like loot fisk that's been left in the broiling sun for three hours.
A couple of weeks ago, maybe a month ago, there was a story
with three buyelines on it in the Washington Post about a Christmas party that Clarence
Thomas had held, which many of his clerks attended, and then paid him
twenty dollars via Venmo for the chicken fingers and hamburgers and hot dogs and pepsi.
And there were people on Twitter saying, it's very clear what's happened here.
These twenty dollars. Twenty dollars, These twenty dollars Venmo payments are bribes.
They're a vig. They're a vig. We all know how this works,
We've seen the movies. Twenty dollars And then people would say, well,
could you talk me through how the mechanism works. It doesn't matter.
Once the money had been paid, Thomas knew what to do, all right.
Now, the same people are saying, Joe Biden got on the phone
and talked to Hunter Biden's business associates, but we can't draw anything from that.
Come on, right, right, Yeah, Clarence Thomas goes on a
vacation paid for by I happen to know of a lovely, lovely man actually
and his friend and a legitimate friend. And it's clear indication of a bribery.
Joe Biden gets on the phone with Hunter Biden's clients, and it doesn't
mean anything. It's not bribery. Consider it an investment. Use those words.
Government invests people to bribe, They invest I mean. But you know,
all of us like to invest in things right different the market essentials,
ways that our life will get better down the road. But there's an investment
you can make absolutely today that will make your life so much better that the
moment the thing arrives. Am I talking about? What? Investing in high
quality shoes so you walk around better, my high quality jackets, high quality
cookwares that you cook better. That's all great, that's that's just a fine.
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we thank Boland Branch responsoring this the Ricochet Podcast. And now something legal happened.
We go to our legal guy. I was glad to see him too,
Andy McCarty, senior fellow at the National Review Institute, contributing editor there
as well and as well at Fox News, served as a assistant I'm sorry,
and assistant US Attorney for the Southern District of New York. And Andy,
how you doing? Good to see you. Indictment number TWI. This
is going to be the one right this, So walls are closing in.
They're gonna sink the guy. They got him this time? Or do they
walk us through what's being accused and what do you make of the charges,
Well, I don't think they were strong if they got him, James,
I think they got him on the moralago thing when they got him on this
thing. So I think the charges here are weak, and the weakness isn't
apparent because the indictment, I think, is teaming with a lot of deceptive
behavior. Right, So there's a lot of evidence which would paint Trump in
a very bad light and strongly suggested that everything he did was deceptive. But
see, the thing is, I think there's been like lavish coverage about his
state of mind over the last few days, like what did he really know?
Could you prove his state of mind beyond a reasonable doubt? And really,
you know, he's Bill Barr's out there, for example, saying,
you know, he absolutely knew he was lying. I told them that there
was no election for it. So that's all very interesting about Trump's state of
mind. But the thing is, in a criminal case, you don't get
to the guy's state of mind unless you can prove that he committed a crime,
you know, putting the putting, whether he did it intentionally and knowledgeably,
and all that stuff to decide whether the acts that they've accused him of
make out a violation of law. And I think the problem that Smith has
is that what he has charged either are not actually crimes and I'm speaking there
about the fraud count and maybe the obstruction count or are crimes, but they
don't fit this particular fact pattern. And that's obscured by the factual recitation in
the indictment, which is, you know, obviously it's it's immense and it's
it's it paints Trump in a very unflattering LFE. But I don't think that
the fraud account, and this is a this is a favorite of creative prosecutors,
this charge of conspiracy to defraud the United States, I don't think that
the Supreme Court would allow it if the case gets to the Supreme Court to
be applied to political corruption. They've been very clear that fraud in the United
States and federal law is a deceptive scheme to build somebody out of money or
tangible property. They said that in two cases involving Cuomo's Andrew Cuomo's pronies chim
and Ellie and Percoco in the middle of May, which is why I said
at the time, I thought that that would be sort of a shot across
the bow that might make might make Jacksmith fold his tent on the election interference
stuff. He's going with an interpretation of the defraud the United States Statute that
the Justice Department likes. It has always liked because it enables prosecutors essentially to
criminalize things that Congress has never enacted in a criminal statute. But the court
has pretty much warned the government not to do this sort of thing, and
he's indicted into the teeth of that jurisprudence, So we'll see how that goes.
The obstruction counts, I think are problematic because everybody is allowed to try
to influence Congress, including the president. The question always when you try to
influence a tribunal is have you done it corruptly? And corruption is a term
in federal law that, much like fraud, is one that has been extended
in a very elastic way to cover a lot of conduct that could be constitutionally
protected conduct. So there's always a dispute about what do you have to do
to make out corruption and is it so vague that you should just get rid
of the law entire home. And I think he's going to run into that
problem because a lot of what Trump did is constitutionally protected activity. And you
have some judges in the DC Circuit who've taken the position that unless you do
something that is traditional criminal corrupt behavior like witness intimidation or document evidence manipulation,
that doesn't meet corruption. And the theme here I should I should stress is
that as as just as Scolia among others said, I think Scalia said it
best. It's a bedrock principle of the criminal law that criminal statutes have to
be sufficiently clear that a person of ordinary intelligence can understand what the law prohibits.
So if you get these loose concepts in statutes like fraud and corruption,
there's a divide in the Court had to handle that. Some judges think you
should just invalidate those statutes in toto because their presence on the books chills people
from acting in manners that are protected by the constitution. Other judges prefer what
they call limiting construction. So, for example, Congress try to enact a
fraud statute that would extend fraud to this concept of honest services fraud, the
idea that you have deprived people of their right to honest services. The Supreme
Court ended up saying that that is too vague, it's not clear where that
obligation comes from, who it applies to, etc. So they, instead
of throwing the statute out, which Scalia and a couple of other job this
is on the court wanted to do. What they did instead was do what
they call limiting construction. So now that statute only applies to bribery and kickbacks,
so fraud in the United States, as far as I understand, it
is applicable only to financial crimes, either stealing money or tangible property or bribery
and kickbacks. But it doesn't apply to As they've said, it's not a
vehicle by which prosecutors are supposed to impose somebody's idea of what good government looks
like. And if Congress wants to do that, they've said Congress can enact
a statute like that as long as they are clear about it and they don't
do it in a vague manner. But it's not licensed for prosecutors to sort
of freelance as as lawmakers in the penal law. So I think he's going
to have big problems with those counts. And I'll just say quickly, the
last count goes. There's been a lot of talk about this already. The
last count is a civil rights count, and it invokes a statute that was
enacted in the post Civil War period which was designed to combat the use of
force, specifically by the ku Klux Klan preventing violently preventing black voters from exercising
their right to vote. And that's the statute that he's trying to bring to
bear in this situation. He's got one Supreme Court case from the sixties that
he's relying on for this, which is a ballot box stuff in case,
also removed from the facts of this case. So I think the modern textualist
Supreme Court would not even approve what the Court did in the sixties applying that
statute to ballot stuffing. But I don't think they have to invalidate it in
order to just say, look, this doesn't apply here, because even if
the ballot stuffing rationale is color that is directed at the act of voting,
whereas what is involved in the case with Trump is after the fact challenges to
the voting, which would have the effect of canceling out votes. But it's
not the same thing as ballot box stuffing. So I just think legally,
all four counts are they have big trouble with them? So and it just
so we're clear here, because I've seen people conflating these two questions in both
directions, trying to hang one on the other. What we are discussing here
is whether or not what Trump did was a crime. But we're not discussing
whether or not he did it. What Trump did was to try to rewrite
the Electoral count Act and the Twelfth Amendment to empower Vice President Pence to overturn
the results of the election and make president once again. That's not really at
stake. What is being debated here is whether there are statutes that support this
indictment and or whether this is an intrinsically political matter. But the facts of
the case are established. I asked this because I've seen people say, essentially,
well, we know what Trump did was terrible. I agree, and
we know January sixth happened. I agree therefore he should be charged with a
crime, which is a non secretary. But I've also seen people saying,
we're implying if this isn't a crime, if this is intrinsically political, if
there's no statutory basis for it, if the definition of fraud has indeed been
narrowed by the Supreme Court such that this your fools outside of the law.
Therefore, Trump didn't do anything wrong. That's not correct, right, right,
It would mean he didn't do anything that was prohibited by the criminal law.
But there are a lot of things that are not prohibited by the criminal
law that are wrong. And I think, Charlie, though, you also
hit on something which is a point I've been trying to make about the political
nature of this. I think what's going on here in part is that they
are trying to use the criminal justice process as a proxy for the failure of
the political process to hold Trump accountable. All the things that Charlie just laid
out are indisputable he did these things. There's no doubt that they're high crimes
and misdemeanors. But you don't have to have a criminal offense in order to
have high crimes and misdemeanors. What Hamilton, for example, in the Federalist
Papers talks about is high crimes or impeachable offenses as what he called political offenses,
by which he meant profound abuses of the political power that's allotted in the
Constitution. And you know the fact that Smith does not have a crime that
he can easily apply to Trump's activity. I think he is a feature of
the system, not a bug. I don't think this is something people forgot,
like like Congress just you know, in some oversight, they in almost
the order of a millennium, they haven't enacted criminal laws that would put the
Justice Department in the FBI monitoring elections. I think that's intentional. And the
way the system is designed, presidential abuses a power are supposed to be checked
by Congress, not by the criminal law. So I think that's the main
problem that that Smith has. Can I ask a very by follow up on
that exact point. I read through the indictment, and I read the debate
between the editors at National Review and Noah Rothman and you and Noah Rothman and
some of the criticisms of National Reviews editorial, and it struck me. And
correct me if I'm wrong that a creative prosecutor under this theory, even with
the narrowed conception of fraud, could bring a case against an out of office
Joe Biden for his student loan order, because you could argue ass here,
and again, Andy, correct me if this is wrong, that Joe Biden
tried to defraud the treasury. He tried to gain a pecuniary advantage from the
Treasury by misrepresenting a law. Now, usually you would say, well,
that's a political question, but I suppose the argument against this indictment is,
well, so is this Is that a fair analogy? Yeah, I think
that's right. The way they would put it would be to say that he
engaged in a deceptive scheme that undermined an essential function of government, to wit
Congress's ability to budget. And you can see how dangerous this is. I
mean, basically. In fact, during the Muller investigation, Andrew Weiseman,
I'm you know, this line of reasoning is very popular with progressives in the
Justice Department, who liked to use the Statute in order to impose their own
visions of good government, just like, for example, they used the Civil
Rights Statute to impose their own vision of what good policing is. And in
the Muller investigation, they charged Paul Manifford with defrauding the United States, and
the scheme was that by failing to register as a foreign agent, he undermined
the ability of the government to have a comprehensive accurate registry of foreign agents.
Now, if you wanted to have a statute like that, I mean,
we do have a Foreign Agent Registration Act, but if you wanted to turn
it into a conspiracy, you could. You could enact a conspiracy. That
says, okay, So, since we're coming up with an analogies, here's
the one I came up with yesterday. Barack Obama tells me told me a
bunch of years ago, if I like my doctor, I can keep my
doctor. At the time, he said that he knew that was not absolutely
that was not possible under the Affordable Care Act. They acknowledged later that it
was kind of a lie to get the thing passed, which to basically nationalize
the gigantic part of the federal budget and the federal government entitled programs. Was
he defrauding the government the people of America? Well, I guess it depends
on who we said it to. Wow, so well right, But Trump
is in charge. Even Smith has not gone so far as to say that
lying to the public is a crime. I think he's close, very close
to it. So, you know what, So, so just clarified this
stuff for me, because I know you must be really tired of doing this,
because basically, what you do when these things happen is you have to
go and painstakingly explain to people what it really means. So there's a huge
amount of pushback on this, which is basically and I think that will be
the part of the Trump defense. It's like, hey, hey, he
can say anything he wants First Amendment, right, And then the second part
is what you said isn't really relevant. Which was interesting to me was that,
well, it didn't matter. He knew that what he was saying was
false, and he was lying so that he could remain in the White House.
So his mental state in at least in the indictment is actually part of
the indictment. When I read it, his mental state was important. Jack
Smith thinks it's important, but you're telling me it's not. Well, let
me try to put this in two different buckets because it raises two different concerns,
right, So, well that's me. You know, I'm very complex.
I'm a complex thinker. Yes, and you require so much new ucell.
Yeah you gotta worm, yeah yeah. So um, you know I
used to cases and if the you know, if the dons in the in
the clubhouse with a bunch of the guys and they're deciding, like what are
we doing tomorrow, and he says, I want that guy whacked. I
never once in all the years I did mafia cases heard of First Amendment defense.
I was sizing right different. So the way that we usually prove conspiracy
and the way that we prove criminal conduct is by speech as much as anything
else, because it conveys not only it not only results in action, it
also conveys is what people's intent was when they acted. So it's been a
it's long been a doctrine of law that there is no free speech prohibition on
the use of words as evidence. What the criminal law prohibits is, or
what the constitution prohibits is in almost every context making statements criminal per se,
like just for the fact that you say them, the fact that you say
words making that act of a crime. But to the extent that the acts
either trigger action or they convey somebody's intent, they are admissible as evidence if
you can show that they are evidence of a crime. So, for example,
I heard Bill bare on CNN say, try to make this point,
but he makes it in further so, the idea that the statute as it's
been interpreted by the Fraud Statute as it's been interpreted by the Justice Department to
prohibit deceptive schemes that undermine essential functions of government. What he's saying is that
if you have speech that shows that that that's not a problem. And I
think it is a problem, but I don't think it's a problem because you're
using speech. I think it's a problem because it's not a crime. The
other bucket here is constitutionally speech that gets enhanced constitutional protection, And if you're
talking about words that are used or speech that is used politically or in a
political context, or in an electoral context, there's obviously a higher interest in
the Justice Department and the government generally not using that speech to prove crimes unless
the crimes are very serious. And this more gets into i think, probably
prosecutorial discretion than any strict legal prohibition. But the Justice Department ought to stay
out of electoral politics unless you have a very clear crime that's supported by very
convincing evidence. If you don't have that, and you're doing what I think
Smith is doing, which is trying to jimmy something up in a way that
puts a damper on people's ability to participate in electoral politics. That's a real
problem as far as constitutional laws. Games, can I ask just one more
question. I know James wants to get into, So just go back to
Muller reports. As you mentioned, the Muller report said kind of what people
say it said, which is like, he didn't do any of the stuff.
This Russia hopes was a Russia hopes basically right, But there was obstruction
and Mueller said, I can't. I'm not going to process. I'm not
going to indict anyone for obstructions that do I have that right? Well,
it seems like people, yeah, people can argue about Muller report, those
of us who say, well, the Bull report proves that this whole thing
was a put up job, And then people say, oh, no,
it doesn't remember because there was that obstruction. Is that am I he missreading
that he didn't find obstruction. What he said was that he couldn't he wouldn't
answer the question of whether there was obstruction or not. And it was a
complete weasel move by Muller. What he said, which was precious, was
it would be it would be bad to make a finding that he had committed
obstruction because under Justice Department guidelines you can indict a sitting president, So it
would be like indicting the president without indicting him and putting the stain on him
in the court of public opinion when he doesn't have a trial venue to go
defend his honor. And by the way, here's two hundred pages of what
he did, yea. So in the end, what happened was the whole
concept of accusing the president of obstruction of justice if he if it's based on
things that the president constitutionally can do, like firing the FBI director, is
a wayward idea. So Barr and Rod Rosenstein, who were the you know
AG and the deputy ag when Muller filed his report, said, you know,
I don't know what we're going to do with this guy because there was
it was already known there was no Russia collusion at the time he got the
case. So the one thing we actually need this guy for is to make
up finding about whether there's obstruction here or not. And he won't do it,
basically abdicated. So they say we're going to look at it, and
basically there's a lot of ikey conduct here. But like if if Trump is
flying off the handle, that he wants mull Or fired, or he wants
Sessions fired, or he wants whatever he wants. That's all stuff he's allowed
to do. And even if some you know, subordinate like a prosecutor,
thinks that he took an action he was allowed constitutionally to take for a corrupt
reason, right, it's not obstruction. So they looked at it and said,
there's no obstruction. Okay. So um, special prosecutor Andy McCarthy,
does he indict Trump for the January sixth stuff? No, not taking Trump
out of it. Rob. If a prosecutor, when I was a boss
in the US Attorney's office, if a prosecutor brought me an indictment that was
based on a theory of fraud that the Supreme Court had slapped down like five
minutes ago, I would tell him that he needed to get caught up on
his reading, you know. Okay, So I think that's what he did.
Here, a special prosecutor, a special process heter Andie McCarthy walks through
the hotel buffet of the you know, the brunch, and all the tables
are out there. He can choose any one of these Trump cases or a
future case he wants to take and to make your be successful with which one
do you like? Which one would Andie McCarthy think this is going to be
easy, I can I could go home at four. I think the Moralogo
case is that case. Now. I don't think it's going to be easy
on the prosecutors who have to do it, only because I've been through a
couple of these Classified Information Procedure Act litigations. It's called SIPA, and these
are they're in their resource intensive prosecutions because they feature what I would call like
a free trial trial of the trial, in other words, before the case
goes to the jury. I've been asked, like a number of times,
do you have to get clearance for the jury in the moral Ago case.
The way it works is you have to litigate prior to trial what classified evidence
is admissible, and then once you figure that out, the court tells the
government you have to declassify this stuff. And if they don't want to declassify
it, they can propose a substitution that puts the defendant in the same position
to make whatever arguments that he would otherwise make to the jury, but withholds
methods and sources and that kind of stuff. That's not always practical to do.
So it's the one weird area of law where the law allows the Attorney
General to order the court not to allow admissible evidence into the case. But
while the government, the executive branch, is the master of classified intelligence,
the court is the master of the legal proceeding. So if the Attorney General
orders the judge don't let this submissible evidence in, the judge can't let the
evidence in. But the judge can dismiss counts in the indictment that the evidence
is relevant to, or dismiss the whole indictment if it comes to that.
So that takes a long time to do. We had a SEPA litigation in
the blind Shake case that you know. I mean, it wasn't the only
thing going on, but we've litigated it for about a year and a half.
I had a real problem getting information out of the CIA. It was
all about like what were we doing in Afghanistan and who was our cut out
and all that stuff. But after eighteen months, I think at the end
of the rainbow, I ended up reading a nine line stipulation to the jury
at the end of the case. So it's a lot of work for what
sometimes is very little at the end of the rainbow, so that part of
it is going to be resource intensive. But the actual case, I don't
think it is a hard case. I mean, I just think it's a
pretty black and white violational law, and it looks to me like the evidence
has gotten stronger over time. Speaking of cutouts and pro Russian members of Ukrainian
oil companies, gas companies before my then revolution, What are we looking at
with Biden here in terms of legal trouble. Can you see the will or
the means or the actual case for impeaching him now? Well, I think
there should certainly be an impeach impeachment inquiry. I heard and I agreed with
Charlie before I came on that there's obviously more evidence here to, you know,
just to justify an investigation. I think there's more evidence here than what
they actually impeach Trump for the first time, you know, the actual oracles
of impeachment where if you remember in the Ukraine impeachment they had to call it
I can't remember who was it called abuse of power, But the reason they
had to call it whatever they called it was they couldn't come up with a
penal crime that he it commit so here, Uh, you know, I
think you have a lot more evidence and if the poll Manafoord case is the
model, and that's the closest thing I can think of that that comes to
what you know Hunter and company were up to. You know, they charge
that as a tax case of money laundering, failure to register as a foreign
agent, etc. So it's a Capone stuff, right, Yeah, Well,
it looks like there's a there's evidence of real crimes and when they bring
money laundering in, money laundering has very heavy penalties because it's customarily associated with
organized crime and drug trafficking. So for that reason, it's it's it's got
very high penalty structure. So these are real crimes. As to Biden,
you know, it looks like the constitution says that you could be impeached not
just for high crimes and misdemeanors, but for treason or bribery. And a
lot of this looks like bribery. So you know, I don't want to
get ahead of what we know, but like, there's there's pretty significant evidence
of bribery here, right. I wish al Capone had taken up painting,
you know, I had become a cubist painter and started selling all of his
work to launder his money to people who wanted to. You know, the
whole dodge that we have with Hunter in his are just imagine all of the
great crime families, all of the dons, all of them taking up painting
as the stylistic wasn't Hitler. Wasn't Hitler a painter, yeah, and a
mediocre one really, but a dog lover. I'm glad was God went all
the way here, you know, to end up maybe on on on a
gaseous note, because I all my questions have been answered here pretty much.
It's interesting that you and Rob and probably Charlie take refuge in this charming thing
that you call constitutionality. I mean, yes, I too share your concern
for the Founding Document and the preservation of it. But we have a new
generation, and we have a party that is increasingly disinclined to believe that free
speeches as absolute as we'd like, as a matter of fact, that it's
the government's job to protect us from misinformation and from hate speech and all the
rest of those things. It seems to me that even if there's no there
there when it comes to criminality on Trump's part, the fact that he said
lies is almost enough now to justify a criminal investigation. I mean when Charles
was saying, rob was talking earlier about the Obama statement about the amount of
your doctor I mean at the time, Yeah, politicians lie. We accept
that it's built in, it's baked in. But now it seems like we're
getting to a point that politically, you have a party that would certainly like
to prosecute somebody simply for lying because the end result is hateful. When Charles
mentioned, could it possibly be that they would go back and get Joe Biden
for unconstitutional lifting of the student debt? Well, no, because that was
a good thing. His heart was in the right place. The objectives were
all truistic. Do you see us actually drifting into a place where this sort
of political intentional desire to criminalize statements is what we're getting to. Yeah,
I think we're there already, And I think the more dangerous thing is the
criminalization of the things that you say that are true. You know, anybody
who says things that are untrue, if you're saying in a legal context or
in a financial context, you're probably on the border of fraud or false.
Statements that are actionable and that sort of thing. So, you know,
false statements is one thing, but what I worry about is true statements.
And I started to complain about this during the Obama administration when they co sponsored,
i think with Turkey in Egypt, a UN resolution that wanted to make
it a crime and impose on every country the obligation to enact in its criminal
code a prohibition against speech that would cause hostility to religion. And it was
clear that there was only one religion obviously that they were were talking about,
but you know, they had a lot of other stuff in there too that
you could legitimately criminalize. But if you just parsed it down to that,
you can't criminalize speech that would cause hostility to anything in American law. And
yet the Obama administration tried to sort of end around the Congress by signing onto
that with a bunch of countries and then try to, you know, the
same way they did the Iran deal, not go through the treaty provision,
not go to Congress for enabling legislation. Basically make a deal with a bunch
of countries and then impose it as if you could do it by customary international
law or something along those lines, but they were the left was all in
on this idea that you could criminalize that speech. And what they wanted to
go after were you know, for example, people like the same people who
about purged from their gigs as FBI lecturers because they were teaching people about the
history of jihad and and you know what its roots in Islamic doctrine was.
All those things they were saying were true, but they wanted to outlaw them
in the interest of you know, uh, not humiliating Muslim countries or not
upsetting them. And mainly it was like a lot of it was like Heckler's
Veto kind of stuff, where you know, it's now supposed to be your
fault if you say something that makes somebody else violent, rather than their fault
that they're violent irrationally. So I think this has been you know, that
goes back to two thousand and eight, two thousand and nine, so we've
been there for a long time. It's just snowballed, and I think it's
become one of those things where it's like, yeah, it's just, um,
what do they say about bankruptcy, Like how did you go bankrupt?
You know, wells over a long time, and then it was all at
once. It seems to be like it seems to be that we're like,
we're there with this stuff. You know, you could see the seeds a
bit going along over the last ten plush years. But I think we're it's
really hitting us over the head. That's that's a Fitzgerald quote. I believe.
How did you go broke gradually? Then suddenly, Charles, you had
something to do? I do. I have a final question that I've been
wondering about for a while, Andy, what is the limit on what you
can be prosecuted for in conversations with a lawyer. So one of the defenses
that I've seen against this indictment is it's not a crime to follow bad legal
advice. So if you go back to the Trump administration, I remember there
were some progressives who wanted to prosecute him for a conversation you have with Don
McGann. Yeah, if I call up my tax lawyer and I say,
what would happen to me if I didn't pay any of my taxes? It's
not a crime for me to ask him that question, obviously, But if
I call up my lawyer and I say, I'm thinking of blowing up my
local Wendy's, Like, you know, would I get prosecuted for that?
And then he says, no, you wouldn't, And then I go and
do it. I can't turn around to the court and say, well,
my lawyer said that I'd get away with it, right, So you know,
I'm just just being prosecuted for taking bad legal advice. Right now,
it was the blowing up the Wendy's that did it. Like, where is
the line here? Because there has to be some room, obviously for people
to say in good faith, Look, I think the interpretation of this law
is wrong. I mean there are lawyers who for fifty years said rov Wade
was wrong. Obviously that's not a crime, But where's the line? Yeah,
just like the sign Feld episode where you know he has sex with the
janitor on the Yeah, was that wrong? Because someone told me if there
are a bit of rule against that. Yeah. But I think I think
the divide you're talking about is the one they always talk about between you know,
malam and say and malam prohibit them laws, Like there are certain things
that are evil innately and you can't get out of the having the mental state
for committing them by like passing it off on. You know, my lawyer
told me it was okay to burder that guy. That's you know, you
can't. But I think the more you have laws and especially regulations that now
have you have some regulations now that have criminal penalties attached to them, and
even if they're not criminal penalties, to heavy duty financial penalties as well.
I think the more that you get into the area of things that we prohibit
because we decide to prohibit them, not that are innately wrong, the better
you have a defense that you relied on the people that were expected to rely
on, like accountants and lawyers, and they steered you wrong. Which ones
there? I think, Well, this is a different issue because I think
with respect to with respect to Trump, what you have in the indictment is
the prosecutor's version of what he was told for the purpose of proving that he
knew what he was doing was wrong. Okay. And I think what Trump
is going to say is, if his lawyer is clever enough, I think
he'll say the indictment itself shows that it's reasonable as far as the government is
concerned, to deduce what somebody must have known by what other people were telling
him. Now let me bring you the hundred witnesses that were telling President Trump
things that the grand jury was never told. And you know, they'll bring
in a lot of witnesses who told them there was a lot of fraud.
And I you know the other thing, Charlie, that I would do if
I were Trump's lawyers, is you know Bill Barr could come in and say,
I told him that was wrong. I told him these three fraud fraudulent
voting things that he was relying on were wrong. They'll bring in a bunch
of people who told them that. You know, in connection with the Pennsylvania
case that the Supreme Court refused to take about whether the court and the election
officials had the authority to change the statutory rules in Pennsylvania, Clarence Thomas wrote
a dissent when the Court wouldn't take that case, in which he said,
you know, look, we need to take these cases before the election,
because if you wait until after the election, the time is too compressed.
There's no reasonable way that you can figure out, investigate and litigate whether there
was fraud. And I think what Trump is going to say is, you
know, whatever everybody's state of information was in December, say early December when
I spoke to bar look at all this evidence we now have that the election
was stolen. And one of the things his lawyers have been talking about is
the fact that for the first time, because Jack Smith has indicted him,
he he now has subpoena power. So for the first time he can go
out and actually use subpoena power to investigate what he says was the election fraud
of twenty twenty. And I think they're going to try to litigate that in
this case. I know, you got to go. I got one.
I just I got to ask you one question of Bautist indictment in general,
right, if you were looking at all the bits and pieces of it,
isn't the certification of the false electors the strongest case that Jack Smith has.
You know, I don't think it's going to be that way, Rob when
it all, when everything comes out. Now, maybe I could be wrong
about this, but I always understood and I've read, you know, some
of the things that have been said by the electors with the so called fake
electors in Georgia, where their point is that they were contingent electors that they
were signing on to be electors in the event that right, And I think
that's what you know. Now there's people in Trump's can who called them,
you know, fake electors or whatever they call them. Yeah, but you
know, I think this is one of these things that actually reads better than
it played at the time. I mean, at the time on January sixth,
nobody thought those slates of electors were going to be a Yeah. It
wasn't like they were. They were kidnapping the electors and showing up with their
big idea. Okay, that was the That's the only thing that was sort
of in my head. And I think that's that makes sense, That makes
sense to me. Yeah, Andy, we hope to have you back when
the Department of Justice indicts Ronda Santis for fraud because his cowboy boot heels give
the appearance of him being taller than he is, and this was a means
of defrauding the electorate going forward. I mean, I'm sure they got there
working up something. Anyway, great to talk to you and hear from you,
and it'll listen to you and get the analysis. As ever, we'll
see you again, and we'll see you on television and scattered about the podcasts
and here and there. Thanks Andy, Thanks guys, thank you a weekend
you too, We shouldn't we won't. Um. We might have one of
those weekends where you have somebody over, but you, the listener, could
possibly have somebody over that you don't know yet. What did Will Rogers say
you never met a man he didn't like. Let's the other line, that
stranger is just a friend you haven't met yet, or some sort of you
know. I know they're both nauseating that line, I've never met a man
I didn't like. I think it's one of the most dishonest things I've ever
been a square, just bs. But anyway, now and then you do
meet new people and you realize, wow, it's good to meet new people.
And that's where Rob Long comes in. Not that Rob's going to show
up at your door, but he's gonna tell you how you can have people
show up at your or go down well, you know, James, of
course, you know Ricochet is online club. You could join Ricochet. You
can mix it up in the comments, mix it up on the member feet
and in the member's lodge, right, but you can also do we alls
do meetups irl. Meetups in real life is the people say um and the
summer now is coming to a close. Our last summer meetup is in Cookville,
Tennessee Labor Day weekends. That's September one through four in Cookeville, Tennessee.
So if you're in the area and you want something to do, the
bunch of Ricochet members are getting together in Cookville. That is always a good
time. I highly recommend the meetups if you would like to. If you're
a member, I want to go, go. If you're not a member
and you want to go join Ricochet and then go. If you are a
member or non member and you're like, yeah, I don't know, Cookdills
far away or Labor Day we can have booked and you want to set something
up for the autumn, here's what you do. You go to ricochet at
com you join, You go to the member feed that's a member's room,
and you say, hey, how about a meetup here at on this date,
and I guarantee you Ricochet members will join you. That's fun. I
wish there was one here soon too. I'm just I'm sorry. I was
stunned for a second there when you said that summer is drawing to a close.
There's more horrifying words, right, you know what that means, James,
it means NFL season is approaching. Yeah, there's that, There's that,
there's that, and we can we can we can look for that.
There's all these compensations and awards that the life gives to us. Charles,
you said that you saw Um Oppenheimer, Rob. I assume you've seen them
both. I've I saw Barbie instead of Openheimer, and I was wondering if
if either of you had seen Barbie, and apparently Rob hasn't. It's an
important movie to understand, the night guy. So Charles, you're rushing off
to it soon, right, Sure, you're painting your golf cart pink and
heading off to the to the I take it. No, well you know
what, guys, James, I was waiting to see where you were going
with that too. No, the sort of thing. Um, but you
want to now, even when it when it shows up on streaming some day,
you you ought to watch it. Um. I think it's been foundly
misunderstood and mis characterized by a lot of people in the right online. I
think in one sense the movie is half an inch deep. But there is
so much there that you can ascribe to various schools of thought and interpretation and
as such, because it's made by fairly smart people, it's an interesting cultural
artifact. And whether or not you think it is the wokest thing in the
world or you realize that it's got a lot more nuance built into it,
the opening scenes of this movie are something that is more anthropologically profound than ninety
nine percent of the stuff that that was turned out in the year twenty twenty
three, and not in a good way, my dear, And that's what
makes it interesting to me. So what you're telling me is that for the
good of my own intellect and edification, I have to watch Margot Robbie for
two hours. Yeah, you are willing to do that for your country,
than good for you. It is, yes, it is not exact.
It is not it's odd to say that a movie with Margot Robbie in it
for two hours is actually hard on the eyes. But it is sort of
hard on the eyes, just simply because of the color palette and the rest
of it. But to dismiss this as just some this this woke screed,
I think is a big mistake. No, I haven't done that. I
just didn't have a great desire to see it because I'm not. I have
never been in a great Bobby Target. Well, this is the brilliance of
it. I mean, here's something that has been derided for decades by feminist
as being the epitome of the of the Chauvin's patriarchal system that keeps to women
it down and reduces them to their image. And all of a sudden,
now Barbie's hot, and in an ironic postmodern sort of fashion, it's okay
to embrace Barbie and everything connected with it. It's fast. I mean,
it's a great job by Mattel of repositioning themselves. And you know, I
look forward to the Jenga movie that's inevitably gonna follow. Yeah, there's a
polypockets move. As a dad who went through who saw these phases move through
our own household and has his own relationship with Barbie, you know, I
gotta find the the hot Barbie this year for Christmas. I have to get
the game. I have to hear that song again. I have a different
relationship with it, and maybe that's why I was curious. But no,
don't put it this way. If I had to say how I would want
to spend three hours on a beautiful summer evening. I think Barbie and Margot
Robbie would be preferable to Oppenheimer in Imax, although I do want to see
that. Yeah, I'm going to see it too. Well, there we
have it, there's your We we dig deep here when it comes to our
cultural reviews, you know, not that mainstream stuff. Now we're talking Barbie
and Barbie in the Bomb, which is apparently the only movies that exist right
now at this day. Squeezing out mission impossible. It seems to be in
the public imagination, which is supposed to be something of a pity. Since
Tom Cruise our last, our last action hero, our last, the last
guy who seems really invested in a molecular level in the art of cinema.
Who would have thought that back in the days of a risky business. Anyway,
risky business would be you not following through the promise we made at the
top of the show where you go and join Ricochet. Well you forgot you
made that promise. We did, We heard you. And also you promised,
you promised to go to Apple where the podcasts are and give us five
stars, because that would be great, wouldn't sure. But you know,
here's the thing. Ricochet five point was right around the corner, and you're
gonna love it so much that you don't want to comment over and over and
over about the magnificence of the design and the brilliancy of the men who have
of the people I'm sorry, who have Steward steward this into being, so
you got to join. You gotta have a little skin in the game.
As Rob said so many episodes ago, six hundred and fifty two, I
believe in order to comment on Ricochet, that's what keeps it sane and civil.
At the Code of Conduct moderators then a group of people who are really
interested in having intelligent conversations and some fun nonsense as well. Gennlemana wish you
a good weekend, and Charles, it's been great as ever. Rob regards
to Gotham. We'll see everybody in the comments at Ricochet four point zero,
but soon to be five next week. Next week, Fellas Ricochet joined the conversation