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Welcome to the Mccarthy report, the pot guess where I rich Larry discuss with any Mccarthy. Whatever Annie Mccarthy wants to talk about this week. The elections and the investigative and policy fall out your listening to a national view. Podcast Veal Sanchez pot, gas natural, you d come. We are delighted to have you, but it would be easier for you and better for us. You made as part of your feet at Google placed at your tune in or Itunes in. Please give this podcast. All the prey it deserves in review on Itunes. Now without further ado, I welcome here in the end our podcasting studio at our world headquarters, none other than Andy Mccarthy. How are you ready?

good and eighty joy they election last night. I sure, did it was too late at night, though, to be this morning having to think about intelligent things to say about it. So I'll just say, the kind of thing usually, sadly there is a brief period there, where it looked as though we are just can be able drink. Liberal tears all night the up when Annie BAR one in Kentucky and this the Senate racism Florida were we're. Looking good for Republicans and seem possible, Republicans might be able to hold on to the house, but then Fox NEWS, actually, the first to say no democratic, in the house that was pretty early in early Kali evening and at the time my recollection was the theme of their board showed. The Republicans were like three ahead May have that switched, but it was an it wasn't anywhere near the twenty three that they needed, but whatever their voodoo as they forget it. I so Democrats took the house will know by how much, but

obviously, as a sea change will have em Schiff charmer, the Intel Committee jury, never charmer. The district, Mary and Eliza Cummings, chairman of the oversight, committee, which is enough right there to bring home how it's not a good thing the loose. How do you know if it's a funny thing yet rich? You know I'll a theme that we cover a lot. Here is the differences between law and politics, and you know we often talk about the lobbying politicize precisely because those two things are so different and it seemed to me. I wrote about the search for the corner last night and I think it really does kind of hammer home this morning. There is a big difference between walking away from something as a political, analysed and saying you know, on balance, the Republicans had a pretty good night here, because they not only

spanned their control of the Senate, but the loss of the house in terms of the margin of it was probably young. I mean, if somebody told us a year ago what the number would be aiming at the democratic and end up with what to nineteen two to twenty. In that sort, arrange it's not gonna be It won't be big. I think I might go higher than that, but let it but it's not blow out right and it's not. It's certainly not a blue whale. That's not what people were talking about a year ago, but politically, I think people would have what a signed up

for that a year ago, especially if you told them the Republicans, might have fifty five seats in the Senate that was carried out, but it does really show that what what's a political victory is not illegal victory, and I don't mean to suggested oversight committees due legal work because they really they really dug there. It's its political oversight, but the tools that they use are legal measures that can be enforced by contempt and including judicial enforcement and that's the subpoena power and the big thing that shifts no matter whether the democratic One, the house, by fifty votes or by one what shifts to subpoena power.

And the control of the committees and given what's gone on for the last two years and how the house has been kind of a counterbalance both legally and politically to the Mahler investigation. That's a very important shift at this point, so it took a lot of it first about that subpoena power and where Democrats are likely to go with it and what it means for the work of Devon definition and other Republicans now going forward. So what do you think the likeliest targets are to go after Trop would be emoluments. Tax return, and all the above yeah. I guess it to do it into any in reverse temporal order that it'll that all come up, and I think in the next but say two did ten weeks.

You're going to see some very frenetic activity in the house, because the recital Judiciary Committee have been working together on one aspect of of what we call the investigation of the investigators and Devon Nunez and his intelligence committee have been working on another aspect of it. They have brought those investigations, as I understand it, pretty Are toward a conclusion, as far as they can go without getting the information that the Justice Department is basically stonewall them on, and I wanna I want to add a caveat there, because I think this is important for all the yeah. You know the trump people out there saying you know Rosen Stein. Why doesn't he gives us the documents he stonewalling us hold them in contempt? Impeach him? You would have the documents in five minutes.

President Trump ordered rose and signed to turn them over. So the person to be angry at in this equation is not Rosen, Steiner's, lotta reasons to be angry, Rosen's diamond. As an interim could ordered disclosure and and hasn't, and you don't have that eventually we'll get around to two. Why that's so? I think, but let's just leave that they are for a moment they ve gone about as far as they can go in terms of interviewing witnesses and chasing down leads without getting that information from the Justice Department. So I think we

you're going to see is one or two, what they'll call interim reports or something in the nature of interim reports which will try to get out the story, but as far as they can take it of what the investigative abuses were in connection with the twenty sixteen campaign, and I think the overlay of that will be. Of course we have to wait for my car, which is the deep d o j, its director general's report, which will who knows when that'll come it'll be months from now? No So that's what will see in the next few weeks, because these guys know they're losing their subpoena power they're, losing their ability to run these investigation. So they're gonna get reports out while they still can and then

Think come January. We move to exactly what you're describing we remember I want to say was probably three weeks ago we talked a little bit about this. This big New York Times report on the Trump conglomerates, financial practices and their their tax practices, and it seemed to me right, as we discussed it at the time, that the way that was written was kind of as a road map to the house on how to do this

Wanna go if you want to know what to look at what to ask for it that kind of stuff. So I think, since that's ready made, some one will have scrub that, in terms of like figuring out, what should we asked for and they'll proceed with, that? I do think emoluments clause is going to be a big big deal. Trumps tax returns will be a big deal mainly because he agreed during the campaign to surrender them any and he didn't so that'll be

that there is actually a tough one to fight off. We may think that all these things are tough to fight off, but I would point out that, as we have seen with the Republicans in control of the committees, the Justice Department, in particular long with the fbi- and I would say, the Trump Administration in General has not exactly tripped over itself to comply. With congressional demands for information and the interesting thing about how this will all work now is that while the media basically poked fun at the Republican led investigations, particularly in connection with the twenty sixteen sixteen campaign and mark them,

and said that they were a sinister tool to try to undermine more and all that stuff. I think there's gonna be a whole new respect for the concept of I shall oversight, pray November's first. So what did you understand in any granular detail? What authority the house does too has to make the president produces his tax returns one and to what would we be likely to learn from his tax returns? I understand perhaps it he wasn't as rich as he persuade himself ass, which seems to be given, but I've never understood why this would possibly be a thread in the collusion case or prove that he somehow

hold on to the Russians like I don't think it would be rich. I mean, I think, to the extent that anything substantive to this, and let me let me say at the start of this- I don't think, there's any collusion and I think if there had been collusion, we'd know it by now. Why will see what more has to say for himself, but I think President Trump seems very confident that there will be no collusion found. That said, we do have some information that, after his bankruptcies, he had trouble getting financing for his business and had to turn to what they are euphemistically called non traditional more rather than I had an path which apparently included some russian oligarchs away, that will be looked into, but you know, I think, reached a lotta. This is

in the nature of how prosecutors think about cross, examining witnesses. You don't necessarily wanna press the witness at least immediately the thing really need. You know that the information you really need what you want is what makes him scorn, because you put the person off balance and a person whose off balance and is being forced to to discuss things that he doesn't want to discuss, says stupid things had makes, makes mistakes which useful down the road, and I think a lot of this will be the cannot look. There's gonna be some smart Democrats who say politically: we can push this to fork as it helps tromp in twenty twenty. If it looks like the Democrats don't have any agenda other than to harass the administration for administering for information that may be in

sting and a little embarrassing, but doesn't doesn't really take him anywhere. I think the public. Probably is going. No not want that and they'll be Democrats who say we can push this too far. On the other hand, they are base wants. These investigations are badly and I think they're they're going to serve their base, even if that serve in the end politically bad for them to do that. So it seems to me that going to your point that sometimes you just want information, I see it the other guys it aside squirm that the smart play for democratic just beat trawl. The president do everything possible to make him lash out, make some sort of mistake, but not goaded impeachment, but the question is whether they be able to strike a balance, and in it remains to be seen in a lot depends on how big there there at the margin actually will be in terms of seats, but what you forecast in terms of what we might

See or hear from smaller and how that might play into what the House Democratic up to you, I think I think on them on the first part, the trolling port. One thing we learned with with Clinton in this dynamic of you, no democratic, Whitehouse, very active republican House Post- was opposed. Ninety four, I guess, is that it's easy for the trap, the president to troll four hundred and thirty whatever it is known as the house than the other way around this sort of a cat hurting aspect to all of this. I think impeachment is the big koona for them

but I think that they realize it's that I mean look the prospect of impeachment at this point. Unless there's something out there that you know look people been looking a trump since he came down the escalator to run in twenty fifteen right. They haven't found the smoking gun, yet an apron searching high and low unless they had paid her with the Republicans now, possibly with as many as fifty five votes in the Senate there's no chance. The trouble forever be impeached at least impatient, remove. Now what do they want? A scalp in all? Oh, we impeach Clinton so that, after you know at least get on the board that they impatient present yeah guess they could

They could do that. Their margin- I don't think he's gonna Be- is going to be big enough, that they could do that comfortably and it's gonna hurt them if they look like their impeaching him over something, that's clearly not impeach about. So I I really have trouble thinking they'll go there unless I am less, they really hit some paid. Her knees investigation. So, very briefly, in those kind of it they question and we can get into it if they do actually start to try and peaches present Trump, but do you think it, Was it a steak or work for a public and to impeach Clinton, enrich retrospect? Now I think it was a mistake and I think the mistake we should learn from the limit and let me say two things: I'm just back and finish. The last point nine and then come to this. Their they're related. I think the play the Democrats will make is that you know what we are hearing.

Is it we're gonna we're going to get something from Mahler. Now, I'm not as convinced that it's that it's coming eminently as some people seem to be, but I think they ll wait to see what mauler comes up with before they make. The big decision on impeachment on Clinton The things that he was impeached over in my mind are clearly impeach of all offences because they go to his fitness for office. There's a lot of debate about that now cast sunshine is just written, a very good book about impeachment. But one thing I I noted about it and when the reasons I think it's a really good book and he managed to one- To hit a to hit a good spot that I missed in my impeachment broken in twenty fourteen is his is not polemical at all it's basically. This is what,

patron is about and what the things I liked about it. The best was the word trump appeared in at one time as the verb. He never mentions a precedent trump by name in the whole book, and he now you have to take this with whatever Rain assault, it's worth because he was on me. He was involved in the Clinton impeachment. He was giving them advice right, so In professor sunbeams mind it's not unimpeachable offence, no matter how serious the president's behaviour is, if it doesn't go to his quarries machine guns as president, and that would even include, I guess, impeach using the powers of the presidency to obstruct an investigation about misconduct that isn't related to the corresponding

what is at present, which is a bridge too far. For me, I think, even though my own view of it is that impeachment, mainly political, not legal, and what sons Dean is trying to do, is try to impose. Solid legal rules on a process that really isn't legal in nature. So. To my mind, I mean here thought here's the example. I think that blows up Sunsetting theory which By the way, agree with ninety percent of what he has to say, but I think you know presidents on the golf worth somebody annoys me, pulls out a gun and shoots the guy right according sons- that's not unimpeachable offence, because it doesn't go to its core responsibilities as president, in my mind, goes to his fitness and it would. It would fit in what Hamilton and Madison conceived as unimpeachable offence, because whether

it goes to his of the core responsibilities of the presidency, or also able you're also allowed to assess the guy's fitness for office, which is what this is ultimately about. But I think the lesson we should take from the Clinton impeachment Nigh wrote about this in faithless execution, which is mine impeachment, but from twenty fourteen. I think the Republicans learn them the wrong lesson. Republicans took away from that we should never say the eye word again, and we should never go near that again and I think the real lesson is that further away. The misconduct is from the core responsibilities of the presidency, the less chance there is that you will get a public consensus that the President needs to be removed from office, and it seems to me it's probably a mistake to impeach President just to get a notch on your belt. The president should not

impeached, unless it is a reasonable chance to remove him and if you, if there is no reasonable chance to remove him that meet that means, does not political support. Foresight bring him at least in unimpeachable way, for whatever misconduct. It is that you want on file articles of impeachment over a guess. Let's hit us leave the house and it said it and see what we might come to have come out the Senate and then also go a little bit to criminal justice reform, something very interested in, and that might be a bypass priority after this election. But before I do, I want to ask our listeners whether they think it's possible that ten thousand of their fellow and our fans and readers can be wrong. I submit that it is not possible that we have ten thousand sign up for an hour plus now. This is a great watershed for us and suggest that all of you who aren't signed up yet are missing out on all the wonderful benefits at an hour plus affords its member.

First of all, you get access to or content the print content from the magazine and the metered pay wall content that exclusive to an arrow and you might be noticing there is more, and more of that can be harder to get around the pay wall. I Also, sir. You noticed that this week I advised inviting. I have you think, I'm nice, I became an inner plus five this well, because I will not read the dream file on Friday night and I the penguin later pads. Why the pay walls yourself, I even sitting three feet away from me for months. We have been doing this and our plus pitch and they had no effect on you. Find the meter pay. While I thought I knew I thought I knew somebody here working so You you will learn Andy, you also get a mostly ad free experience, not upset fewer no ads on articles. You get to comment on articles if you wanted

glanced back as I about the G fire, clad back Jonah communist action. I anti at that. You can do that. You also can be part of our exclusive private facebook group. You also get invited to conversations with our staffers, including Andy Mccarthy and Jim Geraghty, who have both done cause with our inner plus numbers members last month or so and you also get invited to events and coming up and a week or so we're doing our first and our plus meet up. If you're an enterprise member check out your inbox, you have an invite for that. We would love to see you, sir. Please check out an hour plus, and we hope you, like, Anti Mccarthy will sign up. So any the Senate looks like, as you mentioned, fifty four fifty five republican

a seats and not a lot of legislating on me going on, obviously, because anything come out of the house are not gonna be interested in, but this is a big deal for confirmations, both from cabinet and other appointees and judicial confirmations. What would you think the big things our focus are yet tromp has a historic opportunity to remake the federal courts and two to two: have the federal courts? No matter what happens? Twenty, twenty and beyond to have the federal courts, be an effective check on a large to the left. If the if the political branches fall into the hands of the Democrats, I looked at this today. Rich everybody looks at the supreme

For this reason to look at the Supreme Court in Justice, Ginsburg is eighty five justice briars eighty one. They are really the young in their two of the four in the in the progressive block on the court. I expect that they will certainly hang on a young for the next two years. There's some interesting. I am against this myself, but there's some interesting stuff out there about the pressure on Justice too miss to really high return. Your honour on the theory that he's been encore for twenty six years, but he's only seventy, and you know, as far as I'm concerned, Seventys the new forty and he's a hail and hardy seven. He sure is yeah yeah, but the the argument, the other way which Us Thomas Fanciful really wanna hear. Is that if he hangs on then it lets say Trump loses in twenty twenty.

Then he's in a similar position to work to what Justice Ginsburg is in now. I just think of it. This way makes me understand a little bit. What with better Ginsburg, did and why her fan supported it, because I think she's, an idiot and totally self involved and should have stepped down. Obama still president, but now you tell me Claire's Tavis: should you have taken a hell now my eyes can be their choice. Ninety and otherwise. What if you with a guy right? This is like the greatest job in the world and you know I don't want a job? They are not the hardest work

judges in America mean they work very hard during your term, but there you don't. I mean they're off from of four June until October and the Courts Docket now evil is lower than not mean it's about half of what it was twenty years ago. So I dont need not only to belittle cause their cases a very important and they work very hard at them, but you know I mean come on, so I think it's a kind of job you could do as long as you were compass, mantis, but, more importantly, rich in terms of the US where the action is because the Supreme Court decide so few cases the actions really in the lower.

Courts. So I checked this morning. There is eleven vacancies currently on the court of appeals and hats off deposited Trump for and Mitch Mcconnell in particular, for the manner in which they diligently went about filling of court of appeals vacancies this time around, but the still eleven there's a hundred and eleven vacancies on the district courts, and while people don't realize this most issues in litigation do not get appealed. The district court is where rulings get made that really affect the way that Americans live data day. Now that you know their feeling they're out there doing things they shouldn't do like issuing nationwide enjoy

oceans and and the like, but with a rubber, meets the road of a federal litigation in the district court hundred and eleven vacancies is very important to feel they have a forty, eight apparently in the pipeline, but that still a lot of vacancies. The other interesting thing is that there is legislation in the house that would add twelve court of appeal slots and add fifty one district court slots so with fifty five, fifty four fifty five republic In the Senate, and without much prospect of of having an overwhelming a mantle legislation because of the dynamic between the Senate and the house, I think they have to assembly line confirm these judges are basically they there's nothing blocking them. So so, what's the difference between assembly line confirming and just confirming just like upping the pace or, while I think in a normal legislative calendar,

You would only have x amount of time to deal with confirmations here. It seems to me that you, you should make more time to deal with confirmations cause. You're not gonna, make a lot of progress on other things and, in the meantime, these a lifetime appointments people who will be in office for twenty twenty five thirty years beyond President Trump and it's not rich, just the just a judicial sides there's also you know these administrative agencies, which we think about the cabinet posts in the executive branch and that's important, but these administrative agencies, the you know, the constitutional validity of which is, is dubious, but there you know they're pretty settled since the new deal era, although I think there's a lotta, refreshing energy too, to challenge a lot of that. But in the meantime, these agencies that they determine a lot of the way that we

Live and they're kind of weird agencies in the sense that they do the d, a sort of investigative prosecutor, oral in and judging function, wall together, which is why there, which is one reason why the so constitutionally questionable? But anyway, I think Trump needs to get those slots filled also because, in theory those are independent. Agencies do not fully controlled by the executive branch and they will live beyond the president, the deep people he points so little, another speculative, but fifty four, fifty five seep majorities lot different than fifty one seats, especially when it comes to controversial cabinet confirmations, which raises the question of Jeff sessions. Do you have any got instinct on whether a trump willed-

try to push him out now that the election is passed away. Some people would have been saying for less couple months or whether he'll keep him in until the more investigation is over. You I think sessions is on thin arise, then rose Steiner's remove sessions. Will it would be a big deal because If the next attorney general obviously doesn't have a conflict of interests than Rosen's time would not be managing that investigation anymore. So, but at the same time, because sessions has refused himself and is an entangled in an investigation and and because he's obviously got this awful relationship with Turkey I think it be easier to move him out at this point than rose and sign who not only has been

we're seeing mauler but is entangled in the facts of that investigation. So. I think, eventually, you gonna see both of the moved out and I think with fifty four. Fifty five trump has a lot of leeway. Em

he used in in the last congress. He had to be very careful because if he lost one or two reports Mackenzie, he was he was done. Somebody asked me earlier this morning to I think Chris Christie could be the next attorney general. Now, as it happens, I don't, but why not? I just think he he's he's a tougher confirmation and other people that could be nominated because of the bridge gates, and yet I bet you know: you'd have to relegate the whole thing. Linsey, Graham, were idle. If wins, you know, the interesting thing is gradually could be, leaving the Judiciary Committee to go to the bank income

which would put Wednesday in charge of the Judiciary Committee, which I think is a job. He might like a lot more than being attorney general for Tromp, which, as you know, it's it's a wonderful position, but it ain't a walk in the park right and it could be out in two years coming everything go everywhere all drug loses. Instead, you have a lifetime Java Senate and I Lindsey may also be yeah. I'm sure he's thinking about twenty twenty four like like a little more, but I think he could make a big impact, especially with this remaking of the courts. It might be a lot more attractive to him to be the guy who lead that right, then to tend to be trumps attorney general, which is a difficult it. Just one of my mind had not occurred to me that perhaps this cut it

New aggressive turn by lose ground could be a twenty twenty four play, but I guess so yeah oblong sure look, look he's got. We know he has those yes, because, because he's he's on on him before he's a lot more popular among the base today, he he was in recent years, but not too long as you know better than I do it's a long way from from here to there. So let's talk a little bit about criminal justice reform processes, something that you think actually could get traction cause. You have some their public and party and very important people in the White House, namely Jeremiah Vodka, on board. What you think could happen there.

Tell us what which, in view of the merest yeah, I think something really terrible and stupid could happen, because the problem that they are identifying, which is over incarceration, is not actually a problem, and I think it is being hammered out because it's all bound up in in racial and cultural politics, so busy narrative that you know that that the Justice Department has had it in four young black males and as a result, because of the year, the demographics in the in the prison population.

There are conditions of racism in the way that the line that the judge the justice system works now, if, if youth, if you stepped out of the narrative and just short of that in a common sense, way, those- and I guess this bothers me more because I worked in the system for such a long time- The justice system between the bench and the bar is rife with liberal progressive. If you think that they would preside over an institution that was pervasively racist you're insane I mean that's, that's just a crazy thing to thank, and yet people do in fact thank it. It happens that the prison population right now in the United States is lower than it's been in years. The federal prison system has gone down from Mamma. I think it was two hundred

nineteen thousand prisoners and twenty thirteen were down two hundred and eighty four thousand now the prison population in the United States overall, federal and state is, is down to two point: two million people, which sounds like a lot, but no country. Three hundred and thirty million really isn't and is very low compared to the rate of of recent years. We don't have an over incarceration problem. What we have is an over criminalization problem, that is, there was too much conduct that shouldn't be regulated by federal law. That is right. Waited and sometimes regulated by the criminal law, and if, if they wanted to have a project to go through the criminal code and take out a lot of things that shouldn't be in there, that would be. That would be a very good thing to do. But the idea

where we have over incarceration and therefore we should get rid of things like mandatory minimum. Mandatory minimum sentences are one of the big things that people complain about they were put in the in the nineteen eighties enough in the federal system. For the most part, the region they were put in rich is because left wing judges were walking defendants who should be jail out. The door routinely and Republic went crazy over it. So I think just the owner we're running time just have to finish up on us. People don't have an institute. General memory today of how bad crime was before the Reagan, our people,

like me, who grew up and in the Bronx in the Sixtys and Seventys the crime rate in this country, compared to what it is today, was very high. We ve had a revolution in in we ve already actually had criminal justice reform. If you think of what's going on in less generation where we have reduce crime to historically low levels for a country the size and me, we ve never had this kind of prosperity, if you think about it and in those terms, as we have now, and what I fear is they're, going to take out a lot of the things that were put in from the nineteen eighties on that were necessary in order to have this this reduction in crime and to do it at a time and crime rates are not only falling, but the prison population is also lower than it's been a long time. It seems to me to be a pandering kind of politics that dangerous or could be dangerous in the bottom line. Do you have any view.

Away on Phelan Voting, because he had this ballot measure in Florida that pass pretty resoundingly last night to restore voting rights to felons you know I wouldn't I would probably be up for voting it. The voting for that depending on whether it was itemised. I don't think it ought to be every single crime that you give up Europe, your your civil rights. I also think your criminal history ought to matter, but what I like, what I like about this is that it's a real exhibition of federalism in Florida is done. It looking to see how it works out, and you know it may turn out to be a disaster. It may turn out to be a good

it may actually encourage. You know. People who get out of prison have a tough time if they really want to reform and and get back into the mainstream of life, and if this helps people do that, if it encourages them to be good citizens, I am all for it. But let's see what happens in Florida, great, that's all the time I have. I should mention for the record that the Mccarthy report for ages, Andy is Annie. Mccarthy, not back now have no thank you. I just as I always say. I don't need to be the signature line of the of the indictment. I just need to stay at the captain S. How are you listening to an actual pot cast. His part guess has been produced by the incomparable Sarah. Should he thanks everyone for listening and thank you, Annie, Mccarthy, thanks rich,