McCarthy’s Law

Good faith is in short supply.

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If you were hopelessly confused by Jonah’s recent conversation with Sarah Isgur on the Trump indictment, prepare to be even more bewildered by today’s follow-up, which features the overdue Remnant return of Andy McCarthy, National Review’s chief legal poobah. It’s an episode of relentless legal nerdery as they dig deep into the weeds on Trump’s latest legal woes, and whether the claims against him hold up to scrutiny. There’s also some less mind-melting discussion mixed in on the legacy of the Civil Rights Act, the madness of Sidney Powell, and whether the federal government was right to punish Al Capone for tax evasion (yes, really).

Show Notes:

– Andy’s page at National Review

– Jonah and Sarah on the indictment

– The McCarthy Report on the indictment

– Andy: “Anti-Indictment and Pro-Editorial”

– Andy: “The Civil-Rights Theory of Indicting Trump for Election Interference”

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  1. Avatar photo
    The Bell Tower

    Finally got around to this and it was brilliant. I felt Andy’s end discussion in my soul. I did not vote for Trump or Hillary in 2016 but I did vote for Trump in 2020 and I gave my tortured, overlong and probably unread explanation here:

    https://thebelltower.org/blog/f/the-conservative-case-for-donald-trump

    I stand by every word of it and maintain that, leaving aside the Jan 6 treason, Trump was a better president than Biden has been. Like Andy, I would love to argue that I was surprised by Trump’s post election antics but I almost predicted it (as so many did) in November of that year:

    “It's fine if the president chooses not to concede until his lawsuits come through but blocking Joe Biden's transition, threatening not to concede and generally throwing his Legos around his playpen because he isn't getting his way is a bad (if typical) look. While it's unlikely to amount to much more than the usual Trumptastrophe, if he really does decide to somehow create an issue when it's time for him to depart, it won't go well for Republicans. They have two vital elections to win in Georgia in January and being forced to balance between independents who are tired of the president's tantrums and his perpetually angry supporters who want to anoint him king for life is a bad place to be.“

    https://thebelltower.org/blog/f/hello-gridlock-my-old-friend

    Anyway, I stand by both of my votes. And I wanted to point out that while I fully appreciate and respect Jonah’s Al Capone point, it is isn’t very conservative. This gets at the Trumpy fiction that “if they go after Trump, they’re really going after you” and a grain of truth behind it.

    Andy’s point about taking a broad interpretation of the fraud statutes, for example, is important because to extend the definition of fraud without Congress’ approval just because we think we should get Trump or other bad actors puts honest actors in greater danger.

    It’s absurd to believe this is some sort of conspiracy or straight line where “they” are coming after “us” but when you relax disciplined reasoning to pursue righteous causes, the precedent set will almost surely have unintended consequences down the road.

    It’s basically the Man For All Seasons argument that Thomas More makes and we love to quote around here. I know Jonah gets it and simply accepts the trade-off as the lesser evil and that is an eminently fair and reasonable position. I’ve often said that Thomas More turned out to be the sucker at the end not because he was wrong but because he was…. well, a Remnant.

    Please have more Andy. His piece on the Hunter Biden case last week was equally reasoned, thoughtful and compelling as his appearance here was.

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  2. Avatar photo
    Whit Waldo

    I appreciate Jonah having Andy on to articulate his position, but I would have appreciated him making a point-by-point rebuke of the criticisms he's received rather than doubling down on a position that appears to be based on a narrow reading of the wrong statute backed up with irrelevant judicial opinions.

    Ken White's criticisms largely boiled down to two key differences:
    - Andy asserted that there's something wrong about charging former President Trump with a statue created just after the Civil War but never once spoke to the idea that it's been used regularly since then in convictions upheld by the courts.
    - Andy cited significant case history asserting that the charge isn't valid as section 371 deals only with property and fraud of something with monetary value but never refutes Ken's point that his line of cases are interpreting a completely different statute (regarding wire fraud) and not the statute at issue here.

    I would really appreciate a moderated discussion by Jonah (for the inviting atmosphere) and Sarah (for the legal fact-checking) in real time between Andy McCarthy and Ken White so these critiques could be debated in real time.

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  3. Avatar photo
    Marianwcates

    I really enjoyed this episode, which was a congenial discussion of the counts in the latest Jack Smith indictment. I'm a fan of Andy McCarthy and follow his podcast with Rich Lowry, The McCarthy Report.

    I was surprised by the NR take on this topic and lean more towards Jonah's position.

    I find the comments disparaging Andy and NR to be wrong-headed. NR still offers a lot to a discerning reader. You don't have to agree with all the articles.

    Again, thanks for a highly interesting podcast. I hope you'll have Andy on again.

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  4. Mkliegman

    Jonah, I wish you didn’t feel the need to apologize (more than once) for having Andy McCarthy on your podcast.

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  5. BillZ

    This was Andy McCarthy at his least persuasive. He seemed utterly unprepared for any actual pushback to his longwinded bloviations (many of which were just meandering mischaracterizations of the state of applicable precedent), and, in the end, he couldn't come up with anything better than to dissemble into a 15-minute long version of "well, we'll have to agree to disagree." I mean--come on, he thinks that the statute can be used to protect the counting or casting of any one vote but not the actual counting of the majority of votes (i.e., the result of the election, which is the entire reason we have elections in the first place)? Really? It's a gobsmackingly disingenuous argument.

    It is truly tragic what NR has let itself become. Thankfully, the best of its legacy will survive here at the Dispatch. Thanks for coming prepared, Jonah. Next time you don't let him drone on so long before you cut his legs out from under him.

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  6. Aaron

    I'm glad McCarthy was on and I thought it was good talk. He can be very reasonable and well argued.

    I also think it's possible to be a good and decent person, as he his, and to be intellectually dishonest, as he also is.

    When he is talking to Jonah, or about Trump, it's all the sober legal analysis of the way the case falls short. When he's talking about the Dems or writing for the Post, he allows himself to be polemical and conspiratorial.

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    1. Frances O'Donnell

      Exactly. Listen to McCarthy on Meghan Kelly’s podcast after the indictment. Nothing but partisan hackery.

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  8. Randall Briggs

    Andy McCarthy is making the mistake of conflating impeachment with a criminal trial. He has been a reliable proponent of the idea that Trump really is terrible, but the attempts to rein him in aren't following exactly the right procedure and are therefore invalid. He makes the perfect the enemy of the good. Because it's difficult to produce a perfect case against Trump, therefore no case against Trump is good enough. According to McCarthy, at impeachment time, there weren't provable crimes. At criminal-trial time, these issues should have been handled by impeachment.

    And I don't understand Jonah continuing to take shots at the January 6th committee. Yes, it wasn't everything it needed to be, and yes, it was dominated by the Democrats, but both of those problems were caused by Republicans opposing any investigation of Trump's manifest wrongdoing.

    I keep expecting Andy McCarthy to say something like, "Here's the distinction, Jonah. If the statute were interpreted your way, it would fail to keep Donald Trump a free man."

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  9. Aaron H Frank

    Jonah does a little bit of using the end to justify the means here. The thing about Al Capone is that he did violate the tax code. It was not a novel prosecution.

    As for votes not counting... I live in CT so my vote doesn't count either, except it does. Trump could have collected several million more votes from places like California, Illinois, New York, and even Connecticut and Washington DC without effecting the outcome of those locales or the overall election. In California alone he could have received another four million votes and Biden still would have won the state.

    This would have made Trumps stolen election claims stronger even if they were still false. So EVERY vote counts EVERY where.

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  10. Russell Kirk

    AM: "Smith was brought in because Biden knew that Trump was going to claim that Biden was weaponizing the justice department, so they came up with this fiction that Biden doesn't have anything to do with Trump's prosecution, when in fact Smith is exercising Biden's power and reports to Garland. That was a political construct at the beginning...And then the other night when he {Smith} announces his charges he talks for 3 minutes, and 2 and a half minutes are about the Capitol riot which is not a charge in the case. If you flip through the indictment, at the very end he throws in some comments about the Capitol riot even though he's not alleging Trump intended the riot or that he had any actionable connection to it. And he has to take that position because the justice dept. has taken 1100 of these cases and has never indicated that Trump was an unindicted coconspirator or that he was complicit in the violence. They {DOJ} has actually fought against defendants trying to shift blame from themselves to Trump."

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    1. Frances O'Donnell

      What Smith outlines is a course of conduct which encompassed all of the events post election to try and overthrow the result. That includes the lying, manufacturing fake electors & using an angry mob to intimidate congress.

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