Andy McCarthy on the Legal Jeopardy of Title 42 at the Border

BUCK: We are joined by our friend Andy McCarthy of National Review. He’s a Fox News contributor, former federal prosecutor at the Southern District of New York — spent over 20 years there — also, he wrote a book, Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency, obviously about Donald Trump. I feel like, Andy, you might need to write Ball of Collusion, part two. There’s a lot of stuff going on right now between Twitter-FBI collusion, the efforts to get Donald Trump legally.

Can we start with that? I know you’re on Fox yesterday as I could see as I was doing the show, right as the four charges came down. It seems to be something of a consensus that the DOJ, well, actually, no, I don’t I don’t want to get ahead of anything. Tell everybody what you think about the four charges and what happens now.

MCCARTHY: Well, I think the charges are really weak, Buck. The headline, I guess, that I would highlight to encapsulate this is they want to recommend that Trump violated a law that prevents people — or makes it a crime to incite an insurrection or to assist an insurrection or to aid and abet it, etc. And they say they’ve developed evidence of that. And, you know, first of all, they have not… Despite what they promised they were going to be able to prove, they have not proved there was an actionable criminal nexus between Donald Trump and the violence. More to the point, besides the fact that they haven’t proved it, the Justice Department has prosecuted over 800 people for various crimes arising out of the Capitol riot.

In two years of looking at this closely with a lot more resources to investigate it than the congressional committee has, they haven’t indicted a single person for the federal crime of insurrection. So, one wonders, how could Trump have aided and abetted something the Justice Department has looked at and hasn’t charged anybody with? But the other thing is, they’ve indicted a number of cases involving violence, like assaults on police officers and damage to the Capitol. There was a seditious conspiracy case in which some people got convicted. In none of those cases has the Justice Department suggested or cited Donald Trump for being an unindicted coconspirator.

And in fact, the Justice Department took the position that Trump was not the driving force of this. He was basically the pretext that people who were looking to commit violence anyway used as a rationalization for doing it. And the Justice Department has aggressively fought efforts by these defendants to shift blame to Trump. So it’s pretty clear that they’ve decided… This doesn’t take Trump out of the woods. They’ve decided he wasn’t involved in the violence. That doesn’t mean that he may not have committed the crime of obstructing Congress. But it’s a harder proof if you don’t have the violence. So my only point is, how is the committee referring a crime to the Justice Department — the theory of which has to be that Trump is, like, the driving force of the violence — when it’s become very clear over two years that that’s the opposite of what the Justice Department thinks happened?

BUCK: So, Andy, if you have to pick…? Well, first, let me let me just get your take on, do you think there is — and I know I always say no one can predict the future; so, I’m asking what you think the probability is. Is it likely or not likely that Trump will be indicted in the next year? And if it is likely, where would it come from? I mean, or even if it’s not, what’s the most likely avenue? Is it from the special counsel Jack Smith probe?

MCCARTHY: Yeah, I think the most likely scenario, Buck, is the Mar-A-Lago documents case. I think they have… You know, unlike the January 6 case — which is which is complicated and weak when you look at it closely — I think they think — and with good reason — that the documents case is much stronger and that they could probably indict that now if they chose to.

BUCK: Do you think it’s going to happen?

MCCARTHY: I think it depends on whether Trump is a viable candidate or not. I know that the Biden administration and the Justice Department gave this case to Jack Smith as a special counsel to try to create some distance between DOJ and Biden and the investigation. But I don’t think people are going to be convinced by that because the special counsel still answers to the Justice Department and, you know, prosecute prosecutorial power in the United States is executive power.

So if Jack Smith indicts anyone, it’s going to be through the power of President Biden. So I don’t think they can get out of that box. I think it’s politics, and they like the idea of running against Trump — or at least having Trump in the GOP primaries and in the field — wreaking havoc and causing divisiveness in the Republican base. So, I don’t think… If they indict him, it will make it very difficult for him to run. So I think as long as he’s a viable candidate, they probably won’t bring any charges. But I think the second he’s not a viable candidate —

BUCK: Wow.

MCCARTHY: The left really wants him charged.

BUCK: I mean, this is what I was thinking yesterday. I was trying to wargame this out a little bit. I think if I align with you on this one, in that they also I think they may not bring the charge also because they would recognize that that would, I believe, rally the party around Trump in a pretty substantial way. Now, would they try to get jail time for him? (laughing)

MCCARTHY: Yeah.

BUCK: You know, can you really rally around the guy if he’s actually going to prison and, you know, there’s all these other things.

MCCARTHY: Yeah.

BUCK: But I think that I wonder if they would hold back because they there’s that uncertainty factor and also what you know, what the blowback would be. But to your point, if, in fact, let’s say Trump doesn’t become the nominee, then maybe it’s actually even more likely, at that point, he would get indicted just because the left-wing base has been promised this in their minds for six years.

MCCARTHY: Yeah, that’s what I think. I just think that you can’t take the political component out of this because if you could take Trump out of it — which of course, is like… It’s too mind bending to take Trump out. He’s such a lightning rod. But if you could take Trump out of this, every case that a prosecutor indicts is a twofold question. One is: Do you have enough evidence of a crime to convict? If you do, you move to the second question, which is: Is the prosecution in the public interest? What I mean by that, for example, is, you know, if five people are sitting in a circle and they pass around a marijuana cigarette one to the next and the next, in theory and under the law, every single time they pass that, it’s a felony violation of the federal narcotics laws from which you could be sentenced to 20 years in prison.

Right? So you would look at that and you’d say, “I have enough evidence, but I would be insane to bring that case because no one would bring that case,” right? So in every case, you look at, “Do I have enough evidence and is it in the public interest to go forward with this?” And with Trump, I think it’s unavoidable that you have to say, even if you think you have enough evidence, it’s going to be such a divisive thing in the country to indict a former president of the United States who’s actually a current announced candidate for 2024. The prosecutor’s got to be sensitive to the idea that there’s going to be a narrative that the indictment is being driven by politics rather than evidence. And the backdrop for all of this is that we’ve had law enforcement intrusion now in the 2016 presidential cycle and in the 2020 presidential cycle. Do we really want to, you know, watch this movie again? Because I don’t think anybody does.

BUCK: Right. We had it in 2016, in 2020, and now it would be again in 2024.

MCCARTHY: Right. Right.

BUCK: Could we have one presidential election that is not like determine one way or the other by the deep state and its intrusions? That would be a good thing. Andy, also we were just talking about — and we’re speaking to Andy McCarthy. He’s a Fox News contributor, National Review. Go read NationalReview.com for his latest. Andy, the Title 42, the stay… My understanding — and, you know, I’m catching this in real time because it’s obviously still evolving — is that there’s a stay but we don’t know the full explanation behind the stay for the ending of Title 42. And it’s its administrative stay. But this thing has got to go pretty soon, right? What do you see happening here?

MCCARTHY: Well, it’s complicated, Buck, because there’s two different cases involved. But, you know, the bottom line for today is that Chief Justice Roberts has told the Biden administration that they have to respond to the states which have made this emergency application to freeze everything in place until they finish litigating one of the cases that’s pending. And Roberts has told the Biden administration they have till 5:00 Eastern Time today to respond. And in a nutshell what’s going on is, there’s two different cases, one of which arises out of Louisiana where the states are saying that when Biden took away Title 42 — or when they wanted to take away Title 42 — they didn’t comply with the Administrative —

BUCK: Administrative Procedure Act. Yeah, sure.

MCCARTHY: Right. So while that’s being litigated, this other case came up in Washington. And what happened is the Biden administration and the plaintiffs who are — in that case, they are — you know, people who want to come into the country illegally, they put their little heads together and basically the Biden administration admitted that it was in violation of the law and that Title 42 couldn’t be sustained. And the judge in Washington then just said, “No more Title 42,” and what the DAs or the state attorneys general of these 19 states are saying is, “Look what they did here. They colluded in this litigation, effectively, to undermine Title 42.

“When in the other litigation, there’s a stay in place where they’ve basically been told to hold Title 42 in place until the case could be litigated.” So it’s like a collusive lawsuit which allows them to get rid of Title 42 without complying with the Administrative Procedures Act and the notice and comment and all that. So that’s the… You know, in a nutshell, that’s what it is. And I think the thing is, the Supreme Court doesn’t like these collusive lawsuits because it’s a really sneaky, kind of insidious thing to do. At the same time, the court can’t protect the border. You know? (chuckles) Even if the court says, “This is ridiculous. You have to comply with the Administrative Procedures Act. But it’s also true that, like as far as Title 42 is concerned, we no longer have a covid emergency, and the fact of the matter is, it’s the political branch’s responsibility to protect the border,” and the court can’t make them do it, right?

BUCK: So basically, if they decided… Let’s just say theoretically, if the Biden administration — and I think they’re pretty close to this. If they just said, “Yeah, we’re just not enforcing border laws anymore,” I mean, the courts could say, “You’re not allowed to do that,” but what are they going to do about it?

MCCARTHY: Right. “Who’s going to make me?” You remember back in the Obama years we had that Arizona immigration case, and the court ruled against the Obama administration on one aspect of it. And the administration’s response basically was, “Yeah, who’s going to make us?”

BUCK: Yeah.

MCCARTHY: This goes back to the framers, right? The idea was the courts were the least dangerous branch because they only had judgment. Right. They don’t have the purse. They don’t have the sword. And this is the reality of it. And as far as the court is concerned, you don’t want to issue an order that isn’t going to be enforced. Right? Because that undermines the rule and legitimacy.

BUCK: The rule of law and the legitimacy of the court.

MCCARTHY: Yeah. So, you know, I think what happens in a lot of these cases is that if the court knows that there’s a good chance the executive is not going to carry out its orders anyway, why does it want to get involved in that?

BUCK: So do you think Title 42 does go away soon?

MCCARTHY: I think eventually. Whether it’s next Wednesday or within the next year… You know, look, we’re living a lie here, right? There is no covid emergency, right? (laughing)

BUCK: Right.

MCCARTHY: And what’s going on here is the president and the Congress have the authority and the responsibility to protect the border and the law of the United States. I know that this is like a trivial thing, but I thought people might want to hear this. The law of the United States explicitly says: If you come into the United States illegally, you shall be detained until they work out whether you have a viable claim to stay here for some legal reason or not. So they’re just ignoring the law, and what they say is, “There’s too many people; we can’t detain everyone,” and I think most people think, “Well, if you only have 30,000 detention spaces, you can’t let 2.2 million people into the country! So close the border once you fill up the detention center.”

BUCK: Yep.

MCCARTHY: And instead, what they say is, “We can’t detain everybody who wants to come, so therefore, we’re not going to follow the law of the United States.”

BUCK: And they’re basically going to detain nobody, which is what they’re doing right now. I mean, there it’s like catch and release, superfast processing, letting people out on the streets of El Paso and McAllen and wherever.

MCCARTHY: Yes!

BUCK: It’s a mess. It’s a mess. Andy, thank you so much for the excellent legal analysis, as always, and merry Christmas, sir. Good to talk to you.

MCCARTHY: Merry Christmas, Buck.