CLAY: We bring in now our buddy Andy McCarthy, who is doing an incredible job breaking down so much of the legal-related issues all around the absurdity of classified documents and beyond. Fox News contributor, former federal prosecutor at the Southern District of New York. He spent over 20 years there, wrote a book — Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency — and like me, he also had…sorry Buffalo fans and also fans of the Dallas Cowboys. You got a Bills/Cowboys Super Bowl that went up in smoke on Sunday as well.
MCCARTHY: I did, Clay. And you know, I feel terrible about this because I hate both teams. I just, you know, I thought they were…I thought they were getting hot at the right time. So, who knows.
CLAY: Do you think before we get into serious stuff, do you think Tom Brady’s going to retire or do you think he’ll come back?
MCCARTHY: No, I think he’s going to play another year. I think he could still. He’d have to be like in the right offense, right? Because he could still really throw the ball. He’s not, you know, he’s not what he used to be, but that’s like saying Ichiro is only hitting .305, you know? I mean, he’s still really pretty good.
CLAY: I think he’s going to end up down in Miami where Buck’s spending part of the year now. I think he’s going to be another Miamian. More Miami people. I think he’s going to play for the Dolphins. That’s my prediction for Tom Brady.
MCCARTHY: Got a lot of reports about that today that he’s like, checking out schools and stuff like that. So. we’ll see.
CLAY: Yeah, we’ll see. All right. So, let’s dive into Mike Pence today, comes out and says he’s got classified documents. The continued fallout. Five different times Joe Biden has been caught with classified documents. What’s your take on the big picture question here of whether anybody’s going to get charged with anything related to these classified documents?
MCCARTHY: I don’t think anybody’s going to get charged. But like I think we discussed before, if you had asked me that question like two and a half weeks ago, I would say, you know, Trump was 100% going to be charged.
CLAY: Yeah, I was with you.
MCCARTHY: Now I don’t think anyone will be. But my other big picture impression, I couldn’t help this, but I’m reminded — I guess this is because I’m getting too old — but I’m reminded of the Clinton-Lewinsky stuff where the Democrats refrain throughout those years was, “Everybody does it.” And I’m like, “Well, no, everybody doesn’t have sex with interns in the White House”, but maybe everybody does do this. I don’t…it’s starting to look that way, isn’t it?
BUCK: Andy, you know, you may have seen yesterday there was an arrest of a former top FBI official who oversaw counterintelligence in New York City. I don’t know if you guys ever crossed paths in your day, but Charles McGonigal is facing charges of money laundering, I think, among others, that he took money from a former Albanian intelligence employee and a representative of the Russian oligarch Oleg Deripaska. A lot of people see this and they say so one of the guys who…if you were involved at that level in counterintelligence in New York City, the FBI office in New York City, you certainly were aware of the Trump-Russia collusion investigations and things going on there. So, somebody who would have been overseeing the fake Russia collusion investigation of Trump has now been charged with colluding with Russians to evade U.S. money laundering laws.
MCCARTHY: Yeah, that’s exactly right. And, Buck, I was reminded…you guys were kind enough to mention my book in the intro. I wrote a lot in the book about Deripaska, including the fact that, you know, number one, the FBI tried to flip him in, was it 2016? Before the Trump stuff ever got rolling. And that was the reason they were dealing with Steele at the time, because Steele was working for Deripaska while the FBI was taking information from him that ended up in the Steele dossier, which I thought in and of itself was remarkable.
And, you know, the funny thing with Deripaska was apparently, the bureau. One of the reasons the bureau soured on the whole idea of turning him is when he sat down with them, they pitched him on this on the Trump-Putin conspiracy and he was like, what are you talking about? There’s no Trump-Putin conspiracy, which apparently that was not what the party line was at the time. But, I’m just…I can’t help…I mean, it’s terrible for the FBI, but I can’t help but be amused by, you know, the way these guys, you know, seem to change on a dime. So, like, you know, first they’re trying to flip Deripaska, then they’re prosecuting Deripaska. Then the head of the foreign counterintelligence in New York is working for Deripaska. It makes you dizzy, doesn’t it?
BUCK: Is the FBI something that we could dramatically reform in a meaningful way, Andy? I mean, a lot of people ask me this all the time, and I know some people on the right will say, “Oh, we got to tear it down to the studs and start anew.” Well, if you’re going to have federal laws, you’re going to have a federal law enforcement agency. So, you know, remolding the…you know, people think, “Oh, we have a DNI and we had NCTC and all these things. You know, we didn’t need all that, right? You’re just creating more bureaucracy to paper over the failures of the bureaucracy you had before. Could we do something within the FBI? I mean, can there be a housecleaning that would be meaningful?
MCCARTHY: I think there could. But if they were serious about it, like, if they really went about it in a church committee type style, I’m not a big fan of the outcomes of the Church Committee, but like the driving force behind it, those spying scandals and the, you know, the sixties into the eighties, those were good reasons to have that committee. And if they…you know, I think, you know, if you throw out the extremes of both sides, like, there’s one side on the left that wants to defund all police and really doesn’t believe in prosecution at all. And then there’s people on the right who I think unrealistically think that we could get on without a federal police force.
I just think the way society is and the way the law is now, you have to have a federal police force. It doesn’t have to be the FBI, but we have to have one. So, if you toss those people aside, I think there’s enough people in the broad middle on both sides who have gripes about the current FBI. And maybe that’s the makings if people could…if we still have a capability in Washington of people, like being grown-ups with respect to a problem that everybody understands is a problem. I mean, my own view of that, you and I, I think, have talked about this before.
I think the bureau, after 9/11 became too much of an intelligence agency, and it started to be an intelligence agency with a police sideline. And they’re very, you know, I think intelligence work is very important. Police work is very important, but they’re very different. And if you become an intelligence agency, it really damages your dedication to civil rights, which police have to keep like in the front of their minds. And I think that’s what’s really hurt the FBI. I would take their counterintelligence mission away from them.
CLAY: Andy, I want you to take me into what a search of Joe Biden’s home would have required, at least in your mind, from a sort of procedural mechanics perspective. It’s one thing when you know Mar-A-Lago, they show up at former President Trump’s home and they raid that. But for a sitting president to be essentially searched by his own Department of Justice’s FBI is truly unprecedented. Is that something that Merrick Garland signs off on? Is that something that is threatened if the Biden regime does not comply? Like who? I just don’t even understand how that ends up happening. What do you think the mechanics and the procedures behind the scenes were like for this?
MCCARTHY: Clay, I think that the big thing was Biden signing off on it, because you’re quite right. You know, this is…President Trump had a very exalted status because he’s a former president, which is a big deal, but it doesn’t have any political power. Whereas the incumbent president is the only guy I mean, you know, Justice Scalia taught us all this like 30 years ago. Right? Or 40 years ago. The only person with power in the executive branch is the president. Everybody else, including the attorney general in the executive branch, is a delegate who exercises the president’s power at the president’s pleasure. And that includes the special counsel.
Like they tried to tell you, they’re getting an independent prosecutor and there’s no independent prosecutor. In the United States, prosecutions have executive function. Everybody answers to the president. So, they couldn’t have done this without Biden’s signoff. It would have been insubordinate. And I think that’s probably a big part of the reason why they didn’t get a search warrant, which they certainly had legal grounds for, and why they cut a deal with Biden’s lawyers that they were able to accompany the FBI as they did the search, which of course, didn’t happen in Trump’s case. So, I think the mechanics of this is Biden has to sign off on it, and then there’s probably some limits that are negotiated about what they are allowed to look at or where they’re allowed to look. And then the lawyers went along with them as they went from room to room in the house.
BUCK: Andy. So, this basically goes where in your mind, I mean, how does all this end up? I mean, you saw Mike Pence has classified documents at home to this has crossed over into crazy town.
MCCARTHY: Yeah. So, I think that’s a big part of why nothing’s going to happen with this, because I think people are starting to think that, you know, if we now started to look at…like, listen to what Biden’s excuses here. Right? He wants you to believe that it was sloppy aides who packed up his stuff and sent it to, you know, and it turned out that classified information ended up in there as if the aides had security clearances. Right? As if the aides, when he was a senator, went into the skiff with them and are the ones who stole the docu– You know, I mean, it’s ridiculous.
But I think there’s such a a culture of carelessness that if we started to search a lot of these guys, who knows what we would find? And everybody kind of realizes that. So, I think the Democrats badly want to prosecute Trump, right? So, if it was just Trump who had this problem, there would be a very high chance that he’d be indicted. But now that it looks like Biden has it and Pence has it, who knows what will…you know, who’s the next person we’ll hear about? I don’t think they’re going to get indicted and I wonder if Pence having these documents is going to lessen the enthusiasm of the new Republican majority in the House to start asking a lot of aggressive questions.
Because I really think that’s the only way we’re going to find out anything here. The special counsels are there to just say, “You know, we’re doing our investigation, we can’t comment.” So, this whole thing is supposed to go into a black hole. Either the Republicans in the House use their subpoena power and conduct hearings. That’s the only way we’re going to find out anything. And I just wonder if they’ll do that at this point.
CLAY: Andy, you mentioned earlier and Buck and I both have this opinion now. My opinions changed. I thought they would charge Trump over the classified documents. I now think I agree with you that they will not. I wonder if this classified document scandal is becoming so all-encompassing that it actually is going to make it harder for the Department of Justice to charge Trump for anything January 6th related. Now, I presume you would think those were harder charges to bring in the first place, but do you think this overall mushroom cloud of incompetence that sort of is surrounding everything now is actually making it far less likely that anything January 6th related will also be brought against President Trump?
MCCARTHY: That’s a really interesting question. I hadn’t thought about that. I thought up until now that they look at January 6th and the classic the Mar a Lago documents as like two separate boxes that don’t really have much to do with each other, although I do think that if they had found at Mar a Lago any documents that were incriminating with respect to the Capitol riot, they would certainly have used them. But I thought they were looking at that as like two separate trends.
CLAY: I agree with you, by the way, on that. But I thought the charges would actually be easier on the classified docs to prove.
MCCARTHY: Yeah, totally.
CLAY: And so, but it’s such a mushroom cloud now that I almost feel like it implicates January 6th and I was just wondering if you thought so too, because in the mind of the public charging anybody now when it looks like there could be, you know, potentially felonious behavior everywhere, feels kind of like a arbitrary and capricious application of the law.
MCCARTHY: I think there could be something to be said for that. But I still think that their big problem with January 6th is because Trump is not implicated in the violence. The only way that you make a federal case out of that is to criminalize John Eastman’s legal theory. I just think that this whole idea of going down the avenue of making a felony into frivolous legal theories is nuts. I mean, I don’t think we want to live in that kind of a system. I know there are so rabid to get Trump that they’ll probably overlook all that. But I’ve had hope that because they haven’t done it up until now, that maybe Garland realizes this is, like, a really bad idea.
BUCK: Andy McCarthy, everybody. Look for his latest on National Review and also on Fox News. Andy, we always appreciate it. Look forward to talking to you again.
MCCARTHY: Thanks, guys. Have a good one.