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you get your podcasts welcome to the Mccarthy Report Podcast, where I rich Larry, discuss with the Anne Mccarthy the latest legal Security issues. This week, the latest disclosure from Ratcliff Trump, the bar and Nancy Pelosi brandishes the twenty five amendment you're listening to a national review podcast. If you listen to the podcast on national view, dot com, we're delighted have you, but it would be easier for you and better for us. If you made us part of your feed and the streaming services out there, some Spotify to itunes- and please give this podcast and Andy Mccarthy the glowing indeed going five star reviews they deserve on Itunes and now without further Ado. I welcome to this.

Airy podcast through the miracle, the comrades feel tat, none other than any Mccarthy hey rich. How are you I'm good, so he hit the century the one. One hundred episode of the Mccarthy report. That's a matter these are real anti. How do you feel about this compliment? I actually feel really good about it. I've I've enjoyed this so much more than I ever thought I would and what I You know when we first started and we didn't know how how it would go and how Mahler dominated it would be, or or Russia dominated, would be, but I've I've really found that the longer we ve gone on the harder it is to cover everything that we'd be interested in covering in, and that probably means we ve covered a lot of stuff. We

indeed covered a lot of stuff, you seem so when the Mulder report was wrapping up or maybe maybe we're running out of material, and then you get beach men and then just the The hits keep coming and got another full slate this week, but congratulations on a hundred absurd, Andy. I know I here all the time from people who loved podcast and are are educated by every week. So, let's because does because of Richard because of all is that we tell them we are so well the wisest it's insane. So let us get it enter. Ratcliff and the latest on that he adds. Maybe the last time we talked

Two weeks ago, at together, he had released had letter explaining the Intel community had information, suggesting that suggesting that a green lighted, a a to to blame the Dnc hack on Trump. You had a lot of scoffing and people looking Scots at this is a politically motivated missive. Now we have a release of some. Did the backup information for what you make of? It Well, it's amazing how the tone changed and the tune changed from the Democrats and critics of Rackliff. Although I think Rackliff made a strategic error that I'll get to We ve gone rich in the space of like the blink of an eye which, admittedly, can be a very long time in the age of Trump alike in the blink of an eye, but

say that at the beginning said what they said. Basically was that was incompetent. He he had no scruples, totally totally politicized and he had been duped russian disinformation. I thought it was very amusing at the beginning to have all these people who appear to have been duped by russian disinformation for years, saying that the poor Ratcliff had been duped by russian disinfection, But then the interesting thing is he rolls out these documents. One of which is a self hammered notes from Ben CIA director in the Obama administration, John Brenda and another memorandum. This is where reckless sir era comes, anything which is a memo from the CIA to the FBI, which lays out a bunch of information

including obviously, a lot of stuff has been rejected. But what it includes is the sub allegation for this revelation that the russian intelligence Service had what they thought was a window into the Hillary campaign and that they, as Clinton had indeed, basically ginned up the Trump Russia Conspiracy narrative in order to distract attention from. her own email scandal in that she had capitalized on the, the Dnc hacking and the publication of those emails to do at the reason think by the way which just to clear this up before I forget to say it the mistake I think Ratcliff made was he called that a criminal referral and that led to a number of strange developments, including when

Former director call me testified before Lindsey Grams Committee last week, the Judiciary Committee in the Senate. A lot of republican senators got very indignant about the fact that who is this criminal referral? I would sounded like a criminal referral of Hillary Clinton and they kept asking call me about you know: did you get an investigative referral to look into MRS Clinton for fabricating this narrative and call me kept looking at them like? No, I don't I don't I don't remember anything that doesn't ring a bell with me. I don't know what that is. They asked him about Radcliff. He says I don't know what he's talking about their. So, At first I don't seem to fold into commies litany of saying I don't remember, I can recall, etc, but it turns out,

and when you look at the memo, its nodded investigative investigative referral in the way that we think of an investigative referral. What, when that? I used. What it usually means is some agency of the government becomes aware of information that they think could lead to a criminal investigation and potential charges. So they refer to the FBI This memo, notwithstanding that Ratcliff referred to it as an investigative Nemo, was not, a referral. What it was was the CIA communicating information to the bureau at the bureau's request, a back various aspects of the Russia Investigation what I thought was most interesting about it, was that he referred to what they do. What he called

passing information through the crossfire hurricane fusion cell, and the reason I thought that was interesting is because in ball of collusion, Pulling together the various sub strands of this thing, I argued that Brennan must have created a an interagency task force kind of arrangement, and that was his a call for, as he said, being kind of a clearing house for information. He would get information the government's foreign intelligence collections and Eu This sum interracial: the task force to communicate it to the FBI, I which then ultimately ran through the five court with it and did of various other things. So I now that we seen this memo, the crossfire Hurricane Fusion Center is obviously this interagency task force arrangement that that Brennan

altogether, which underscores Brennan. Key role in this collusion, narrative, which I think, ultimately, if we ever get to the bottom of all this. Besides Hillary Clinton, it's going to be Brennan who looks like he's the major catalyst here, pushing pushing things along, but the reason it's it's, a tactical error. Reckless part is. It gives me a good excuse for saying I don't recall getting a referral on Hillary Clinton because he didn't get one. If you look at the memo, it's not one m the thing is, it gave bread Who should be the object of scorn for what happened here, because basically they took something that was thin as could be, and they whipped it into intelligence and, ultimately, a criminal. investigation, but Brennan was able to go out there with all you know, Brennan's, familiar indignation and say

you know how awful and political rackliff is to suggest that MRS Clinton committed a crime. By going out there and saying there was a criminal referral against Clinton and, of course, the criminal reef idea, never made any sense because at the very time that memo get sent from the CIA to the FBI, Brennan is in the ear of Senator Reed wisdom. The Democrats leader in the Senate, trying to get him to put pressure on Comey to open a criminal investigation against Trump and Carter page, and all these other people it can't be that you know, on the one hand, Brennan he's trying to push anyone who listen to him to get the FBI to do more here and investigate more and at the same time he's referring MRS Clinton to the bureau for an investigation that obviously It happened, so I think Rackliff made a mistake and how he couch the memo.

but the memo is very important because it shows what was going on and the change in tone. I think that was interesting as the days went by is at the beginning, they were saying this whole thing was made up and Ratcliff was a victim of of russian disinformation by a few later. What they're saying is well, obviously MRS Clinton was very worried about what Trump was doing with the Russians. It's basically at this point, they've essentially they've admitted that it has, then, and now we're down too wide. She do it. So that's, that's quite a quite a route to travel, and I think again it underscores what we talked about last week, which is the bore of the investigative classified paper trail. We see the boar, I think it bears out,

What's been obvious for a long time, which is that this was a political narrative, it was, it was basically called together and fabricated and peddled by the cap, campaign and they found a willing partner in the Obama Illustration, which opened an investigation on the basis of essentially nonsense, so, let's hit at another related controversy, Tromp has been recovering from covered and take me up generally to attack one of the top count, embers Nick deeply toolbar over the face of the Durham Investigation furious that no one's, as has been charged with the with crime that is really seem to be in prospect, has been in vain,

her about it treasonous spot that he was a victim of and has been taking a public shouted at bar over all this, what to make make of it? Well, you know this is. It looks like nothing here, I've said this a million times in connection with other people, but romances with president rub are fleeting things, it seems and eventually everybody in the circle not named Trump and sometimes even the people were named Trump end up at. loggerheads with the with the president. So You have this situation which we talked about. If, if done a done, it shows ritual we probably, this will probably be the aim. Time we mentioned it. But you lot.

the things that are abuse of power are not violations of the criminal code and President trap was kind of happy about that during the Ukraine nonsense right, because they had What I mean you could argue about how major minor was, but you had a situation where he used his control of the Foreign policy apparatus of the government to squeeze an ally for his own political, domestic gay rights. So that was the year that was Ukraine and the Democrats in futility. Tried all kinds of theories bring it under the rubric of a criminal offense, because they, I think, understood that, even though, as an intellectual matter and a constitutional law, That are you, don't need a crime for impeachment at your helps to have one, so they were trying to get a squeeze it under a criminal statute, naked

fine one, which is why they had to do this kind of vague abuse of power, article of impeachment. So back then, the president, I think, was happy to that end content to enjoy the benefits of the fact that not every at all, presidents at some point or another abuse their power and. You know abuse abusive power by the executive branch, except in very egregious egregious situations is not a violation of the criminal law. And it has to be that way- if you think about it- and your politically people don't want to think about this backing Ukraine time it was opponents. president didn't want to think about this that we're talking about russian collusion? It's the supporters of the president, don't want to think about this, but the CRM,

in a law is there to punish people who commit mainly private intentional wrongs and the way the system polices against official wrongs is to have a lot of things in the constitution, like impeachment and other political checks to bring two to heal. The executive, those who violate their authority who abuse their authority and the reason the criminal law is never a good fit for that is because almost nothing you do especially about in the realm of national security. Is a judgment, call on the circus where you have wide wide discretion to protect the United States from perceived harms, because that's what you've been elected to do,

and when you have that kind of a situation where everything is a gray area when you're evaluating what people on their minds and what drove them to act and worthy of real threats and all that stuff The criminal law only neatly applies when you a statute that clearly lays out here are the elements that a prosecutor has to prove in order to convict you. and you can in a clean way say that somebody beyond Reasonable doubt had an intent to do something that the law for forbade, saying that somebody went too far as far as their executive discretion is concerned,. Yeah. It's one of these situations where it's an easy thing to say that was an overreach. That was an abuse of power. But then you know the question always becomes well give me me a criminal statute that applies, and then you get

because there is an obvious one, and I think the fact that Trump comes out and says treason underscores that there's No, you don't there's no obvious and criminal statute. That applies to this, which is why these thing about this stuff. So so, what's your guess it it! so we don't see a term report before the election, Well actually also is reported today. That bar has started to tell the White House and other row the top Republicans on the hill, that there will be no report and no indictments before election day. and I think you know this goes through another thing we ve talked about a number of times, which is. The longer this thing went into twenty twenty, the more was going to be vulnerable to being attacked as a political stunt, rather than a good faith investigation, and I think one of the

We talked about it. I probably said, like the end of May young, the end of spring. In a summer, probably no later than in July I even even that I was pushing it, but the closer you to November, I mean the more. This thing looks like or would look like. It was a force, and I think it looks to me, like you know: dorms got a very good reputation. He's never been reputed to be fast, and he's not a political guy. Everybody who knows him says that the one charge that's been brought here. I don't see how anybody could I mean I was critical of Durham for this was such a clear violation of law. I don't think he shouldn't allowed Klein Smithy, FBI lawyer to get away with pleading to it like you did as if he had always, if he really didn't intend to deceive anyone, but

Whatever you think of it, the one case, studies broad, is a guy who tampered with a document that was used as a piece of information connection with the submission to a cord- that's a crime, any place, so it It like, like is doing anything other than a professional job, and I think he got bad luck. You know once Covid hit grand juries were closed down. It became impossible to travel to Interview witnesses, there's there's a lot of things you can do on among among them is not interviewing key witnesses in a criminal investigation to get in a room with them and show them documents and look them in the eye and make judgments about their you there, the meaner and all that stuff so that's not to say this would have been. You know this would have been up by the end of the year or

by now anyway, but that certainly didn't help matters, and I think that the Justice Department, even with the president, the president is very self interested unease in the middle of a political campaign where he's fighting to keep his job the Justice Department has, as an institution and bore as somebody who got to be concerned about his own legacy has to be looking at the fact that, for example, when Bob Mueller brought that ridiculous case against the russian businesses that were caught up in the yeah that thing exploded when they try to bring it to trial. You know they didn't expect to ever be called to go to trial. You know that catch showed up and they said we want in court. We want the discovery we want want to go to trial. The just Sparkman ended up have no in a very embarrassing wife, it's loaded

Europe as we predicted all along if we did we did and now so this Durham by hair debt, so so that it does so bar lets a bar for other reasons or zone reasons. Thinks is important to get it out before them and tells germ that Conder just say. Well, you know this is my report and I still need to talk to twenty people and sorry. How does how does that Interchange work are dynamic. Rule of the road in the Justice Department. Just like. I think it is in the executive branch broadly. It may then worked wait, national review, rich I've never tested this principle, but basically, in this band's army bar has three Stripes and Durham has two stripes right. So if bar tells to do

something. You either salute and follow orders or you quit there. Isn't it. There isn't any mental road so On the other hand, you know be generally doesn't work that way, because, if a if a supervisor trusts a junior prosecutor, a subordinate prosecutor suggesting dorms junior bunny subordinate to bar if you trust the prosecutor, the prosecutor is always gonna, be closer to the case that you are as the supervisor and if he says it's not ready, then if you trust him, it's not ready and it's only gonna embarrassed department. The iter general and the prosecutor if they, if they pressure him to bring a case, that's not ripe, and then it just gets dismantled in court. And then I think the other thing, because they call me, is such a hovering presents over this whole thing. Aside,

From being involved in the facts, but look at what happened in twenty sixteen, they in this very unusual irregular press conference there, obviously looking at the political count there and got a hail of criticism over it, rightly so, because they were trying to clear MRS Clinton for the democratic convention at the end of July so that she could go in unburdened by the possibility of a criminal prosecution So that was a decision that was clearly made. With an eye on the election calendar and then what call me at the end, ten or eleven days before the election. He drops this bomb that he did not have to do publicly. You know he could have just if he wanted to reopen the Hillary. Instigation he could have reopened the Hilary investigation not to tell anybody about. It he later said,

well. I gave my word that I would like the Senate now. I will let the Senate now, but wait till the day after today, the meantime you don't go about your business, but by being very public and by putting out information that there was No, not only was there no obligation to put out, but there was no reason to put it out and it should have been put out. He probably change the outcome of the election. Any certainly deserves to be criticised for thrusting the law enforcement apparatus of the government in electoral politics, having criticised that now for two years I dont think Bore wants to do it The problem is it, you know, if he's just go If there's just going to be a narrative report- and there may not be charges which looks like that might happen, we don't know or I'm according to bar or according to the reporting, is still methodically methodically going through this and looking to see. If.

make some cases, but there's even less reason that you could justify it. For the Justice Department the report out. Will you not even charge in anybody right before election day? They're good, Be criticized rich, I think its proper for them to do this. But if this just a narrative report there going to be criticized for putting out a narrative report whenever they do it, because they ll say well, wait a minute. You guys complained one Hillary Clinton, you know one call me went out and that press conference, what you all said was you know, he's not supposed to do that. We in the Justice Department doesn't speak publicly about the evidence about on George people. Now in this situation, the Justice Department is looking at misconduct that the Justice Department is implicated in an that's the kind of thing that the Justice Department can certainly put a report out about the the inspector general. Does that kind, thing all the time and dorms report should be more informed

than an ig report, because Durham can use a and jury he could subpoena he can do all the things are normal prosecutor can do that, and I just can't so don't see any problem with the Justice Department, putting out a report about government misconduct, but to do it three weeks before an election. When it's going to be criticism of the Obama administration misconduct when the obama- administration vice president is running for president is not that. I don't think you I don't see how bar would survive that. As far as you know, the heat that would come down over subtle. so so final question, the so so Dirhams already bars negative for some three weeks before an election So so options options are basically just to vay against bar and against this process, and I mean he's not going to fire so bar three

question here and now. I actually think there's a safety valve here, rich, which I think I appreciated the the availability of of the significance of, but I think at this point, Lindsey grams investigation, which I have Poohpooh as you don't basically a show that was not done all that important, because nobody who actually thought there were about to be indicted. What could be indicted by Durham would be testifying in front of Graham. That would never I but I do think if you look at what what and is doing and also look at what RON Johnson is doing in the Homeland Security Committee. Those investigations have congressional investigations have become important vehicles. If then, for the Justice Department and the intelligence community to put

the paper trail out and Trump seems to be indicating that he is now of a mind to you know massively declassify stuff and put out there crises he's impatient with how things are going, so it will be like getting a report, but I think we're gonna. we're going to start seeing more of the paper trail and obviously what we saw in the last three weeks is has really advanced people's understanding of what happened here, yeah. So, let's, move on to Nancy Pelosi absurdly Waving around the twenty fifth amendment: what's going on here, you know. I think I think she mad and shot herself in the foot. Yeah. She wants Trump to come out and say when he left tested negative before the positive test. Corona virus, so she can run around and say he was reckless and irresponsible and infected other people and he didn't care, and you know blah blah blah, so I think

He got so whipped up to do that. She didn't rehash instead. Trouble actually has turned this honour in it. A shrewd trump like wavered hears. It looks there like rich what she saying is, after four years of not doing anything like this. Oh my goodness we're about to we're about to perhaps elected and president and maybe he's the accomplishment of so we need. We need tat, we need to make provisions in case we have to remove the, As it is from Power- and I don't get you know- I don't think she meant for this to come off this light. But trouble is out there today say like crazy. Nancy's worry, but Joe is is, has lost it and she's gotta get out. They know they were about to elect somebody who's not able to function in there. You not preparing for the commission presidency. So you up, I mean, obviously that was not the store page big. That policy was was shooting for, but you know

as a legal matter. It's kind of a silly proposal, the tenth amendment as. As we covered. Was it thirty years ago, when ROD Rosenstein try to invoke it's just a short investment, just joking, while I give polite policy would have been better off. I think its use just joking, but that the as we discuss back then and as all these scholars who looked into the twenty fifth amendment and studied it and all that stuff It's it's not a proxy for impeachment. It's meant for the very narrow Woodrow listen type situation, Wilson had a stroke in nineteen nineteen and basically his turn. was finished out by his White House staff in his wife conducting the business of the government. So between that and other kinds of situations, like the one President Kennedy was, was assassinated

could a lingered for a long time. You know that kind of thing, you have temporary situations where we ve had president's, who had minor surgery Reagan, had major surgery where they had go under general anesthesia and the power the presidency has to continue. In these situations, where you have a profound medical disability where the president can function. The twenty fifth amendment, which in all other particulars, is about where a president he either the president himself says that he's not up to the job. For you know whatever reason or the president is it dies or the president is impeached, in other words, all those situations. Those are the other situations. The twenty fifth amendment addresses in section for it addresses the situation where the president is incapacitated in medical science.

but the president is not in a position to come out. I am incapacitated in a medical center. Somebody has to make that decision. The way they roll it out in section four is the vice president can be invoked. Either in connection with a majority of the cabinet or a committee. Or would they what it says in the amendment is a body enacted by Congress by law to judge or assess whether the weather, the president is incapacitated, so what policy is doing is seizing on that provision that allows Congress to enact a statute that that would create a body like this. The problem, of course, is you don't if she's going out, if you want to go after Trump number, one you would need tends to sign off on it, which would never happen.

It's got to be enacted by law, which means you can't do it by yourself. She would need the Senate to to go along, not not even to entertain it if they ever did Trump wouldn't sign it and, as we said, it's not a proxy for impeachment and there's obviously, obviously no disability here. So the whole thing is just ridiculous. and I think it's just one of these situations where she was to do a political attack on Trump and maybe didn't think through. How it was going to you know, were down to her detriment, which I think it has. So one other thing forget you. Out of your Andy. I know you have a lot of its anniversary, absurd celebration asked it to do so. We have this Gretchen Whittemore plot, where he had these so called militia members.

Scheming to kidnap is the governor of Michigan. What do you make of? Well, I want to poke fun at it, but listen to the angel on my other shoulder and you point out, obviously that this is an awful thing it reminds me of some of the evidence we had in the blind shade, which involves you, you chatter, about about potentially kidnapping back, then it was former President Nixon and former Secretary Kissinger and other political figures and had frightened us at the time, because it wasn't just idle talk. This means you know people who were out doing training on how you did dumb abductions and assassinations and the like, so

yeah, it's not something that that be that to be dismissed in a in anything but the Assyrian. It's a serious situation, and I I think, it's too bad bad Whittemore in the car at that wherein you know their first impulse was to go political on it, which seems to me to be kind of nuts. you get what they want to say. I guess. Is that this shows that all of the street violence that we've had in the last four months is a region. As they've been saying all along of white racists out there stirring up trouble, and you know that's directly to be laid at trumps doorstep because you know he told the proud boys to stand by or whatever the whatever the expression was. And in the meantime I mean

this is not really a political thing, it is not a race motivated thing that I can detect. It looks like these words. Michigan militia types were animated by Whittemore. Is draconian, lock, lockdown orders- and I think you know the lesson here- for all of us should have been a bipartisan across It illogical lines condemnation. That simply said you know we don't settle or political disputes by violence. We do it the other through our political processes, and it should have been easy for everybody to justice. You don't get on board with that and say that you know we all support these. This prosecution, these guys should, if they did with their accused, they should get very long prison sentences. Instead,

know we have the usual political narrative. It doesn't look like these guys are in any event or its premises. Maybe they are. Maybe we will hear that, but that doesn't look like what animated them, but obviously trump and trumps just department aggressively investigated. This is a lot of work that went into this case, including undercovers, covers, and the Justice Department knew about this case long time the FBI knew about? It was going on riches as late. I think the last thing I saw the complaint was September, thirty it. So this was like a really ongoing plot. But what is the justice department? The Trump Justice Department: what did they do? They? They aggressively investigated the case, they've ve, arrested the main six guys they ve got them in jail in there. You know they ve already got them charged in a complaint, with one count that the judge can send them to jail for

life and that's only the beginning by the time this case gets indicted, there's gonna be lots more charges, so be nice if we were not in such a toxic political environment that we could just salute this as a testament that you know we're not like other countries where the thing is with this kind of thing is more normal. No matter where we are at politically it's the kind of thing we can all condemn and instead you know its political goal season election season. So I guess people try to try to make headway with the weather sunshine, but I know just don't think this is the kind of thing they ought to be doing. That was ok, That's all the time we have this podcast has been produced by the incomparable. Sarah should thanks everyone listening and thank you, Andy Mccarthy. Thanks for.