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[0] Fulton County, Georgia, saw a steady stream of both high -profile and lesser -known associates of Donald Trump, sweeping in and out of the county jail this week to be booked in the election interference case brought by district attorney Fannie Willis.
[1] But while the legal process moves forward, legal arguments against the case are also mounting.
[2] In this episode, we talk with a former federal prosecutor about what he says are the legal pitfalls and potential fallout of the fourth Trump.
[3] indictment and about how the cases of the other 18 people charged will likely be handled.
[4] I'm Daily Wire editor -in -chief John Bickley with Georgia Howe.
[5] It's August 27th, and this is a Sunday edition of Morning Wire.
[6] Joining us now to discuss the Fulton County Trump case as former federal prosecutor Andy McCarthy.
[7] Hi, Andy.
[8] So you've written some analyses for the National Review in which you argue that the case brought by District Attorney Willis is ill -conceived.
[9] You argue effectively that it's It's an attempt to turn the federal and political investigation of the January 6th committee into a state -level legal case.
[10] Can you unpack your premise here for us?
[11] Yeah, I think what she has done is adopt the January 6 committee's theory that Trump was a criminal mastermind who essentially, in a coherent and multifaceted way, put into motion a series of connected schemes that the, the objective of which was to retain power.
[12] And I think she doesn't go quite as far as the January 6th committee, probably because she doesn't have venue over the Capitol riot that could not be brought as a crime in Georgia because it didn't have any factual connection to it.
[13] The problem she has is there's not really a unifying crime that she can charge, which brings all these disparate schemes, which were really, you know, I think they're better understood is kind of half -baked, incoherent, a lot of them unsurious.
[14] She's trying to do it by racketeering, but what she calls a criminal organization that she's charged really doesn't meet what the law regards as a racketeering enterprise, like a mafia family, because a venture like that has to be a continuing organization that presents a continuing threat.
[15] The 19 people that Willis indicts had no interest in being an organization or even an association.
[16] They didn't understand themselves to be an association.
[17] One way or the other, their scheme was not going to go any further than January 20th, 2021, because Trump would then either be in power or out of power, but either way, there would have been no reason to continue to have an association, even if you grant, for argument's sake, that they did have one for those two months.
[18] Speaking of those co -conspirators, there's been a lot of attention on Trump, of course, but far less attention on most of the co -defendants, apart from a few like Mark Meadows and Rudy Giuliani.
[19] What should we expect from them, the co -defendants, and the role that they will play in the case?
[20] Yeah, it's interesting because I am proposing, I've written a column about this, that what Willis should have done, instead of bringing the big case that she brought, But she really should have broken it down into at least three and probably four cases.
[21] And if she had done that, it would be much easier to see what the different roles of the different people are.
[22] Instead, she's got kind of this rambling 60 -page RICO charge that tries to tie it all together by essentially articulating it as a timeline.
[23] But what you see when you break it down the way I think it should have been paired down is you would have one case, which would involve Trump.
[24] And most of the, what I would call the major players in the Stop the Steel scheme that went on from election day to the capital riot, you'd have one case involving Trump and those people, which would be centered around the so -called fake electors scheme that they're all charged in.
[25] I think the only person who's in the category of major defendant in the case who's not charged in the fake electors scheme is Sidney Powell, who is charged in a different scheme involving four defendants that has to do.
[26] I think actually the most serious charges in the case, which are this idea of hacking into the state's election system, I think that should have been brought as a separate set of charges against those four defendants.
[27] the Trump end of it, the first case that I think we want to focus on because it's the major defendants, I would say you have Trump, six other of his top aides or advisors, and three minor players who are the people who actually volunteered to be electors.
[28] I actually think that case should be two different cases.
[29] It looks like the minor players, the people who actually volunteered to be electors, had a different understanding of what the scheme was than the major players.
[30] So the electors would tell you that they understood themselves not to be fake electors, but contingent electors, meaning that they were basically a placeholder and that if the campaign was able to lawfully get the election overturned, whether through the courts or through legislature.
[31] If that happened, then they stood ready to a substitute for the Biden slate of electors that was appointed and certified after Biden won the popular election in Georgia.
[32] Willis's charge is based on their preparation of what she regards as phony manufactured documents and then mailing those to the National Archives and the District Court in Washington.
[33] So that's their scheme.
[34] It's differentiated.
[35] from the major defendants.
[36] And in this regard, I think we're talking about Trump, John Eastman, Rudy Giuliani, a guy named Ken Cheesboro, and three or so of Trump's lawyers in Georgia.
[37] Their scheme, according to what the state alleges, was not just to have these slates of alternative electors in Georgia and other states that they were disputing, but they wanted, as a at a certain point, to use the existence of these alternative slates as a basis to argue to Vice President Pence that he should invalidate the vote in those states, or at the very least, remand the election and the electoral votes back to the states so that they could have further proceedings, which the Trump people hoped would result in the Republican -controlled legislatures in those states, overturning the popular vote and substituting the legislating the legislative to vote for Trump.
[38] There is some precedent for that in the past, right?
[39] There have been moments where some standby electors were in discussions, correct?
[40] You're correct, but the best historical oddity on this, I think, is 1960 in Hawaii, where it was a very close election between Nixon and Kennedy.
[41] And initially, it was thought, I believe, that Nixon won.
[42] And I think we were talking only about one electoral vote from Hawaii at that time, maybe two.
[43] But in any of event.
[44] It initially looked like Nixon had won, and the state actually certified the Nixon electors, and then it emerged that Kennedy had won.
[45] So the state then certified another set of electors.
[46] So both ended up going to Washington, and you actually had two slates that had legitimately been certified by the state.
[47] And in an interesting moment, because, of course, at the time, Nixon was vice president.
[48] So Nixon, during the joint session of of Congress where they certified or validated Kennedy's victory, it was Nixon who said that they would count Hawaii as a Kennedy state rather than a Nixon state.
[49] So it's kind of an interesting historical oddity, but it's really not on all fours with this situation because there's no confusion about this set of electors from Georgia.
[50] They were never certified by the state.
[51] Moving forward, is the DA's choice to charge this as a RICO case going to actually backfire in the sense that if the central RICO premise falls apart, it prevents Willis from pursuing these independent charges.
[52] I don't think mortally, because what I suspect will happen, a good judge would actually be doing her a favor if the RICO got thrown out prior to trial, and he told her, you know, go back to the drawing board and try again and do this as separate cases.
[53] You could have a case that's based on the fake electors.
[54] In that case, you would also throw in the Raffensberger phone call and some other offenses that these other people are charged in.
[55] And then you could have a separate case on the hacking conspiracy, breaking into the state election system to purloin their data.
[56] And then you have a separate case on the alleged intimidation of this election worker Ruby Freeman in order to try to get her to change her testimony in the state investigation of what went on at the state former arena where she was an election worker and where the Trump people.
[57] people allege that there were all kinds of shenanigans.
[58] I think that should be a separate case as well.
[59] There's a few things she's done that are preposterous.
[60] So, for example, she brings a charge against Jeffrey Clark, who was a Justice Department official, who was sympathetic to the idea that there might have been election fraud and proposed sending a letter to Georgia to tell them that the Justice Department had serious concerns about potential fraud and suggest that the legislature convene a session to consider decertifying the results.
[61] It's an absurd charge because it's only a draft letter.
[62] The Justice Department never sent it.
[63] It never got close to being a formal letter that you would send to the state of Georgia.
[64] So that's just a silly charge.
[65] And I think that'll get thrown out.
[66] I think the case against Mark Meadows should get thrown out because I don't think actually the solicitation charge that she's trying to make fly in connection with Trump.
[67] Trump's phone call to Raffensberger, the Secretary of State of Georgia.
[68] I don't think that that's a legally valid theory.
[69] But with respect to Meadows, I would just say narrowly he didn't do anything in the case other than set up that phone call.
[70] It's not like he threatened Raffensberger in any way.
[71] He's the chief of staff who set up a phone call between the president and an election official in another state, which is, you know, part of his duties.
[72] The problem with the solicitation thing is in federal law, solicitation is limited to crimes of violence because it's very clear that the Constitution, as robust as our protection is for free speech, it doesn't protect calls to violence.
[73] If it's the imminent use of force and it's a real threat, there's no First Amendment protection for that.
[74] Georgia has a much more broad solicitation statute.
[75] So any solicitation of another person to commit a felony, even if it's a non -violet, felony can be charged as solicitation in Georgia.
[76] And I think the constitutional problem with that is that we all have a right to petition Congress or petition legislature or petition government officials.
[77] And even if you petition government officials to do things that would be lawless, that's not a crime.
[78] And they also try to charge the major defendants with providing to the legislature, inaccurate information about irregular votes.
[79] You know, the Trump team contend that there were tens of thousands of votes in Georgia that were against Georgia election law.
[80] But I think Willis's charges on that score don't pass muster because the crime in Georgia for providing false information is if you provide it to a department or agency.
[81] Those tend to be executive agencies.
[82] If you're going to charge somebody with providing false information, is if you're going to providing false information to a legislature, they have to be under oath.
[83] There's a crime in Georgia called false swearing, which is like perjury.
[84] None of the statements that are charged in the indictment were under oath.
[85] So I think she's wrong in terms of trying to apply the statute that she invokes, which only applies to executive agencies, and she's wrong because constitutionally were allowed to petition a legislature.
[86] So I think those counts should be thrown out, too.
[87] And if they are, then I don't think there's any case against Jenna Ellis, who is another Trump lawyer who is only charged in the counts that involve providing allegedly false information to the legislature.
[88] To put a button on all this, what do you think is going to happen with this case in broad strokes?
[89] Do you think a lot of it's going to be thrown out, or is this going to move forward as it is mostly intact?
[90] Yeah, I think for the most part, there's a very good chance that it can't move forward as it is because I really think that the federal defendants, that is to say that of the 19, the people who were in federal government positions during this whole escapade, they have a very good argument that the case should be moved to federal court.
[91] And I think it broadly may be that even the co -defendants who were not federal officials have to go to federal court if the case goes to federal court.
[92] have to sort that out as well.
[93] So I do think that at least some of the case will end up in federal court.
[94] I don't think that the RICO is going to survive.
[95] If the RICO survives, they'll be able to keep the case together, but I just don't see how it's a RICO, as the law understands RICO.
[96] I think if they were to cut it up into three or four different cases, you could actually get pieces of the case to trial pretty quickly.
[97] But, you know, the problem with that is that Trump's dance card is pretty full right now.
[98] You know, he starts a civil fraud trial in New York, brought by the state attorney general on October 3rd.
[99] He's got two more federal civil trials in January.
[100] So just the civil cases take you through the early debates and all the way up to, I think Super Tuesday is March 5th.
[101] So it's possible that this trial that begins at the end of January could run right into Super Tuesday.
[102] Tuesday.
[103] So before we even get to the criminal cases, you've got these three civil cases, which are going to keep them pretty busy going into the spring next year.
[104] And then I think you're going to get one or more of these criminal cases will be brought to trial.
[105] Yeah, a lot on the docket there for sure.
[106] Andy, thank you for joining us.
[107] Oh, it's my pleasure.
[108] That was former federal prosecutor, Andy McCarthy.
[109] After talking with Andy, we reached out to Jenna Ellis, one of the co -defendants in the case about being named in the indictment and the effect the charges will have on the practice of law.
[110] I'm very encouraged by Andy McCarthy's comments about my case specifically, but also all of these lawyers across the political spectrums that have rallied to the dissents of the practice of law.
[111] This is literally an attempt by the state of Georgia to criminalize the practice of law that should never happen in America's history.
[112] We have the right to petition our government for redress.
[113] We have a right to represent our clients, whether or not the state agrees with the political opinions or the case of a particular client.
[114] And so this is a pivotal moment in America's history that we are going to see whether or not the U .S. Constitution prevails the rights that are secured to every individual to obtain the right to counsel, the right to free speech, the right to petition, all of these things that we hold dear in America.
[115] this is a moment that I think we need to truly step back and say what is going on in America that individuals can be targeted for their political views or, like in my case, simply for practicing law.
[116] All right, that's all the time we've got this morning.
[117] Thanks for waking up with us.
[118] This has been a Sunday edition of Morning Wire.