Welcome to them a cartier. Fourth part guessed right which were discussed with Andy Mccarthy, the latest legal and national security issue, This week the corona virus, emergency powers and the Mullah Russia case dropped you listening you and ask for your part gas business by gas and assure you that comrade life, have you better be easier if you better for us, if you made as part of your feet, today, the stream services out there from Spotify to Itunes, and please give any Mccarthy in this part gasped the glowing indeed gushing fotched our views they deserve on Itunes. Now, through the miracle of the complex field, tat I welcome this very podcast, none other than any Mccarthy.

Rachel I up good and he has the social distancing going for you. Do you well, is it about as good as our bunker bunker conversation here? Yet I think it's really strange, I went out shopping yesterday and it said it really is hidden depending on where you go, whether the shelves are rob stocks are not people seem strange. You know, I mean it wanna be friendly, but they you can tell that there's something strange when you get to close in the air yeah yeah and we had. We had a hot day. You get a relatively speaking a warm day on sea. Probably in the sport in New Jersey. Yes, and yet everybody. You know everybody got gloves on thirty sky, like sort of jack- it's odd and lawyers on another few people wearing

mass, but happily not too many people wearing mask us like one family of about three people wearing mask, but otherwise I think the word is got not at least that we should save the masks after the people do in the trading who really need em. But it's it's a very It's a weird time. I can only compare it to vaguely what it was like to walk around lower Manhattan after nine eleven, where you know even asked Are you not long after it was over? I would say that a couple of years after it was over at just always felt very weird to me: let's dig in some of it the legal powers behind these sweeping shut down, you ve heads present Trump and work the defence production act. I guess he's not actually using it. Yes, yet, and also the Stafford

so any what is the defence production ACT and what its purpose you know rich the m. It sounds a lot scarier to those of us who care about private property in the free economy. I think it sounds a lot scarier than its proved to be. In fact, it's been in dozens of times in seventy years. It's been on the books, and here I think, be medical, We can cover a lot of this by saying that didn't I'm gonna only right about this. For my my column over the weak

because we always asked what the law is and yet, when we're dealing in these crises situations a lot of this is driven by politics and people's specifically people's sense and perception of threat and also emerged conditions. Has crises come up more than the law, and I think, ultimately, it gets determine more by how people feel than than what the statutes on the books actually sober back in nineteen fifty it was the period of time after we mobilized from the Second World war. There were massive cuts in the armed forces, were massive cut backs in military capabilities, as you would figure, and there was also an assumption that almost reminds me of when the Soviet Union

there was an assumption back than that, because we had nuclear weapons capability that that changed the need that you had for the kind of conventional military capabilities that existed up until that time and in very short order in the late forties into the early fifties you you had been, crouching soviet tyranny in Eastern Europe, you had now winning the civil war. in China, and then you had the outbreak of the korean LAW korean WAR, and I think that disabused people it certainly disabused Harry Truman of the idea that, like you know, the world was over and we didn't need conventional forces any more and you don't think that all the assumptions were different. But they had to ramp up quickly in order to today

with the threats that existed so one of the ways they did, that was by enacting the defence production ACT which, in its original most robust form allowed the president. If he unilaterally perceived the necessity to do so to do things like girl, but I dont know if I'd exactly say commandeer, although there was some provision in the law for that, but at least order private businesses to supply things to the government and to prioritize government Contracts when they were ness necessary for the war effort or for national security, it wasn't meant to apply just a wartime. It was meant to apply to any kind of emergency and

it was one of these laws. Much like we talked about the fire a last week. The defence production act similar in that it periodically sunsets or provisions of a periodically sunset, and they have to be re. Looked at by Congress. I think the reason it's turned out to be much us ominous, then maybe it sounds. Is that what it, really been used for over the years, is for the government to extend loan contracts and allied to defence contractors and other security contractors to make sure that the country has to be where were the wall that it needs to confront threats? And it's been you, you're not to waive legal provision. that would otherwise inhibit companies from

collusion and other other provisions in the law. That would make it difficult for them under certain circumstances, to fulfil contracts or or makes up eyes at the government, needs for various national security purposes, so even what sounds scary spin on the books for seventy years? It's been invoked about fifty times and it hasn't really proved to be very controversial, and I think what Trump is doing here is similar to what we talked about last week. He's he's kind of an eye, think using the triggering of this law without really doing anything specific under it. To try to exhort businesses not extort exhort encourage businesses to young get on the stick

with respect to the to the things that we really need to in the way of medical supplies and the like to work to combat the strap I'd, be surprised if he does anything to terribly provocative beyond that. And I think he's been pretty good up until now, making sure to pay deference to the states and the sovereignty of the sovereignty of the states. And you know the fact that the governors are kind of the first line of defence. Dealing with the local conditions in there States which are different as we go from state to state as promptly set himself. You know a number of places now New York. Now New Jersey seems to be California your Washington state, maybe Texas, is emerging as well. There's a lot of places where the de threaten the disease appears to be rising.

and there's a lot of places where it's it's pretty quiet hasn't been much of a problem to this point, so he's trying to be, I think, deferential to the governors in that regard, so they ve been Democrats had been urging him to just flat out now, lies the production of new House Bluff still at ease that later, as protective equipment, testing cetera it there does the power exists to do that, and could you do that under the defence Protection ACT? It would be really count. Commercial to do it you'd really be pushing the envelopes because you'd be invoking. I think you would be invoking so the extent I've been able to research on this. I think you'd be invoking powers that have been repealed over the years or or cut back on and just right

To give you an example of this in Numb in nineteen, fifty to one President Truman famously seized the steel mills and try to offer Then, when the Supreme, when that case, got challenged by the steel companies in the Supreme Court, the Truman administration explicitly disavowed any reliance on the defence production, active No, it was pretty new and robust and had been on the books or for just you know about a year and a half the time, and the reason they said, we're doing. That was that the big, the prison measures in the act for seizing property of private businesses were too cumbersome and too

detailed and involve and would have implied too much delay that they would not realistic in terms of dealing with the threat that he perceived tat. The which was that there was a labour strike that threaten to completely halt steel production in the middle of a war, and that's why, in the supreme or even though that's the place where you would have thought you would place the most reliance on the defence production act under the circumstances. The Justice Department said now, basically we're going with article two of the constitution, not the not the defence production ACT and in the ensuing decades, though whose powers have been among the powers that Congress repealed and cut back on. So what we are really talking about here are low guarantee. So I dont even know rich that it would be necessary to get into The economic argument, which we could make all day, that the that the private sector is better equipped to do this anyway

the government plain, maybe a supporting role, but not you not matter. Managerial role, but I think it would be very controversial and probably illegal for the president to try to do that, and I don't think there's any reason to think he will right, yeah. I don't know why. Just like these ventilate ventilator manufacture, just can't through a lot of money at them a lot of work. You know what. Why would I want to go in and run it yourself in a perfectly cable more efficient of doing that. So the Stafford ACT with with courage and talk about what is it while the Stafford? came in nineteen, eighty eight and it so it actually replaced a law that existed before that. I am somewhat narrowed. The law that existed before that that allowed the federal government to deal with disasters and catastrophes on state level and base

Will you wretched got two provisions? It's got. What Trump has already involved, which is the emergency declaration provision, and what that means is time is a situation either in a state worrisome. region of the United States, where the state capacity to deal with a catastrophic situation, a threat to public property or public health and safety. Whenever there is a kind of situation and the state is overwhelmed, the federal government can jump in and supplement the state resources bacon hand Access they could make available access to the federal emergency funds that exists, which, in our about as Trump keep saying about fifty billion dollars in that fund. That can be made more or less immediately available to two states that need it and they can apply. Fellow

resources too, to supplement the state resources. they can wave legal conditions that would in a bit the states in one way or another from acting you don't. Basically, you can cut the red tape and allow them to get down to business so that see provision that he has invoked he'd. Now he does a second provision which, the more sweeping manner of federal assistance, which is the which is the major disaster declaration and the battle the federal government to do more, but there's a couple of things about that. That's probably make it in applicable to this situation. One is that the states have to ask for a major disaster

the declaration, so the president has the authority unilaterally to declare an emergency, but the states have to ask for a major disaster declaration to help and the other thing about the major disaster provision is the way the lies written. It's really geared toward physical infrastructure that gets destroyed in something like Gub, an earthquake or hurricane or some kind of natural disaster. It's not really geared by the terms of the statute to deal with a pathogen that infects people, but doesn't really do any damage to structure. So I think it's unlikely that Trump will declare a disaster, but you know the again. I think the politics is more important than the law and if the governors ask him to do something, and he thinks that there's a fig leaf for Buenos implausible red

This provision is that he can invoke it. I think if he does involve get under my wooden hold my breath waiting for that to be challenged legally, even if it would be a dubious thing to do. So not the most still weighty matter in the scheme of things, but we ve had this big debate, Andy about what we should loosely cock the virus and where this except the warriors, just called too hard virus or the chinese virus as President Trump does we both written about this in and around the same page. I think that what are your thoughts about this controversy? What You know, I think it's it's like the silly season, which always breaks out its unfortunate to see a break out when you have such an actual serious crisis, It seems to me that it's the most clear indication aside from, but what you ve Marshall and what you wrote about all the historical instances of different diseases. Being

named in accordance with the place where they were thought to have originated. That's a very rich history, but it just seems to me that the very beginning of the news coverage of this story. The press repeatedly itself referred to this the war on Corona Virus- and it did so for common sense reasons. It is not only was originated or had originated in China, but a big part of the story. But a really important part of why we were so behind in trying to deal with this is the suppression of information and by the chinese communist regime, which made it very difficult because of their red opacity, to understand exactly what sweeper gravel

What's so that the Very board born the story was only natural that they should talk about, will on and China, and it was only when Trump started to do it that that it became you know Lee, racist and xenophobic, etc. To refer to what this lie On the other hand, you know from trumps it so obviously this on the left and on among trumps opponents. The calling him out for this now has a political aspect to it that doesn't really make a lot of sense and from Tromp zone perspective. You know, I think he did admirably shut down travel from regions in China, where, where the threat was coming from any active, pretty decisively to do that was it in net was late January. I think that he did that

at the time. He took a lot of heat for doing it, but I think it was idle. Absolutely do the right thing to do, but I think we also have to concede here that there's been a lot of the ball has been dropped in a lot of important ways: The reaction of the federal government generally cannot think. All of this is trumps fault, but the rhetoric that came out of the administration at the beginning, real under underestimated the the extent and dire need of what we were dealing with. So now, President Trump, for his part, is emphasising the China aspect, the you know, I don't think he doesn't cold war on that trot and ease keeps going to China Virus or the China Corona Virus, and I think, he's dead

after his own political reasons, I dont think they have anything to do with racism and xenophobia. I think he's trying to highlight the culpability of the the chinese communist regime in a way that secures be performance it lit has. Certainly, in the early stages of some components of the: U S, government that I understand what he's doing that politically. But I think we are on the young. We recognise that it's that its political and I dont think its again, I think it's racism or xenophobia just think it serve its blame. Shifting, which is pretty common in politics, reality there. Certainly that aspect to it, and also I keep he feels special need to do it at as well. At a time when China is coming up with is bizarre conspiracy theories, blame viruses

Us there and I think, that's exactly right, which also, but I was just you say it's also consistent with our trump- is very good, at finding the villain in every piece, usually a villain who These are to be labelled a bill and maybe not fixed at said. The president labels on, but certainly there is, there is a lot of ability there and he's very effective at hammering that so this is this is a method of politics. I think we become familiar with, but that's that's not to say it's not justified here. so. Let's revert back to Mahler Mode, we haven't said his name and a little bit on this path cast, but his Russia an indictment of the that this operation troll farm, that was playing an and our election entry.

Sixteen has been dropped, as you predicted two years ago, it would be dropped. So what what happened here well. This is this is comedy of errors that isn't so funny. I suppose, but this is an indictment rich that should never have been what I mean rule, one for all prosecutors and you'd, never indicted case unless you're ready to try the case and they indicted this case thinking they would never have to try it. Because all of the Russians in this isn't just the troll form and diamond. This can be said of the hacking indictment as well. These indictments were broad fate ring that these were russian people and russian entities that were in Russia. That would now, forever in a million years appear in a federal court,

more needed to perceive the need to justify his existence? It was nice to have you have statistics that said that he had charged a bunch around since, even though there was no evidence that the Russians actually conspired with the trunk campaign, or indeed any one else, in the United States to speak of but I think mainly the reason that they brought the indictment ridge is the proof that Russia was behind the influence operations against the twenty sixteen elections. While I accept the intelligence agencies conclusion about that, the proof of it is very scant

in terms of the courtroom proof, that is to say, I don't think they could ever in a million years, have proved it beyond reasonable doubt in court, and I think the beast indictments were designed to try to put that to rest, because that you can't you. Carry off a political narrative about Trump collusion in Russia's interference in the election. Unless you could first prove that Russia actually interfered in the election such that there was certain collude in so late. That was an important piece for them and I think they were trying to put that part of it to rest the mistake that more made was he and he didn't content himself with just indicting russian individuals? In the troll form case, he decided to include three russian companies, which were basically just shelter Bernice for Kremlin activities and the problem will, when you do, that, as a prosecutor is accompanied

and have the same risk as a person. You throw a company in jail, and a russian shell company doesn't even have the same risk as an american company which can at least be bankrupted in a lot of terrible things on the criminal side that you can do to a viable american company which, If your russian shell company, then does not really much rusty, you so, what the russian shell companies did was they hired council who hurry good lawyers in Virginia and they sent them into account. and told them. You know we're here we're ready to go to trial. We want the discovery. What we want to try this case and mothers team you know came up with, but a bunch of absurd reasons why they couldn't when it and want to go forward with the trial. You not one point. They said that the feed defence hadn't been properly serve to. That was why they couldn't go forward in the meantime in service.

Process is just the way that you get the other side to court when the other side's already in court saying where air we want to go to trial, it's not really. very relevant whether they were properly served or not. And then Mauler took attack that dumb. He couldn't give them the discovery that the law requires, because if we did that he would be informing Russia about what was in his investigative, far rules, which is the same calculation that a prosecutor goes through in every single case. You know when when I was a criminal law prosecutor, if I indicted a mafia hit man, I couldn't say to the judge. I can't make discovery in this case because then the

and being a family will know everything. That's my files, the judge would say to me if that your concern, but don't indict the case, but once you enjoy the case, you can avoid the due process requirement. So that's a calculation that you have to go through in every case, so, finally, that the biggest problem with this case turned out to be that there was no case. I mean it was at its. It's really embarrassing debacle, but the first thing mauler had to concede was that the russian government had not orchestrated the troll form conspiracy that, but that, in other words, these were a bunch of russian people and russian entities that were not connected to a Russian to the russian regime. So

the whole narrative about you, know, information warfare being conducted by Putin's regime against against the United States suffered a big blow by the attention that was paid to that regrettable fact that they couldn't tie the troll form case to important, even though there is obviously desert. There's a potent oligarch power has who's the guy, who controls the three Companies- and he is clearly in the middle of it, but it made it was a difficult it was. It was a blow to them not to be able to say that the the regime was toward reading this and then the other problems rich, were that they couldn't really prove that any

The defendant was actually a russian agent such that they would have had. Two, for example of but you know, register is a russian agent in order to act in the United States or have an impact in our country. They couldn't prove that the is that they made for internet add spend political rallies were necessarily things that had to be reported to the Federal Election Committee, so their whole theory on you know concealing the fact that they were affiliates of Russia or that were connected to one. There were the russian people, or there were affiliated with russian businesses on the argument that the government may that mothers T made was the ceiling that fact was indicative of an intention to frustrate the ability of the United States to have a foreign agent registry and enforce the

election laws. But if you don't have a duty to reveal in the first place, you can argue that concealment, it is, is indicative of criminal intent. So that was a big hole in their case, but I think that you know that the biggest thing was it would have been difficult to do this case without getting into the whole question of how much Russia was culpable how much Russia's government was culpable in coordinating all these activities, which is why, two years ago I said you know the best even though it will be humiliating. The best thing that they could do is just drop the case against companies, because the individuals will now put will never at the individual defendants come here for trial because they'll be thrown in jail, but the the companies, the Justice Department. I thought two years ago should have just said- you don't whoops, we shouldn't have done that. We're gonna drop the case against the three companies. It would have been embarrassing for a week or two, but that would have been that would have

The end of it- and here that here we are, they got to the point where this judge was trying to push this case to trial pro or may of this year, so it was getting to the point where the Justice Department had to really think about drawing this case in court. When push comes to shove, I think they decided they couldn't do it. So, let's hit one last thing to thought little bit from last week, which is the state of Pfizer legislation on capital, which is not now a top reminder of anyone right capital held, but you had. The past has passed bill. We talk about last week and then God, Sir, locked in the Senate by the work of them by partisan team of ran Paul MIKE Lee Enron widen and you think they're just desperately wrong on us. I do you know, I don't think that its right to if we

three provisions that are actually helpful to our counter terrorism. Effort than I dont think you should hold the continued application of those provisions. Hostage to the to the pride act of amending pfizer- and I'm not saying that simply because I disagree with way they would amend Pfizer. I would like to see Pfizer changed radically to in a different way than than they would, but I'm not I'm not saying. I don't think anyone should say that if we have countered if we have counted terrorism, measures that are useful to the country to protecting Americans. I don't, I think that ought to be off the table in these negotiations. We should just I don't understand why these provisions are sunset, it at all, they should just be enacted into line, and the agency should be allowed to use them, but

de the ran Paul MIKE Lee. Do oh, in particular, which been moving against Pfizer provision. Since long before drunk came along, I you know they have their own principled constitutional objections to them. I think that they're wrong about those, but I don't, I don't doubt their good faith in raising them, but they think that any opportunity that comes up because of these sunsets to go back to the well and try to change, Pfizer in a way that that actually pretty much better rights. It is something that they ought to exploit and here they use the fact that these three provisions were sunsetting to do that. Their way of thinking lost in the in the house, but I think they succeeded in planting in president trumps ear the idea that

mending Pfizer or or reforming Pfizer as they put. It is a way. Holding the FBI accountable for the Pfizer abuse that went on in the twenty sixteen campaign. I think that's totally wrong. You can't hold people cannibal by amending a statute. The only way you can hold people accountable is by Jim either prosecutes, them or otherwise disciplining. There's no no amendment to escape the statutory scheme. That's gonna succeed in holding people accountable for something that is done and the thing that Did you know the the Pfizer abuse it we're talking about in connection with twenty? Sixteen doesn't have anything to do with these three provisions, which are which are just totally different, so yeah look, the bottom line is they lost in the house. There was a compromise bill that basically was brought about by negotiations between Democrats,

leadership, the Republicans or a little fractured in the house, and Bill bar the attorney general at the Justice Department. They came up with a bill that would have preserved the three provisions until June the twenty three and wouldn't have done anything that was terribly harmful to Pfizer and to our ability to do counter terrorism. The report begins in the Senate hoped that they would just be able to basically bout. House bill with little or no in the way of of changes and then be done with it, but it became clear that ran all I might we not only warrant and ride widen, not only one, can I go along with that, but they were probably going to filibuster defies a bill which would have made it difficult for the Senate to deal with the corona virus, which is obviously a much more

for problem now. So the bottom line is the Mitch Mcconnell worked out with Paul and Lee a compromise in which they will re authorize. It's a bare bones report. The resolution of the three provisions for seventy seven days, which would get us to the end of may and be, I think, be what he had to pay for that was very they're gonna, be able to bring up at least three amendments to the House bill and that'll. Be that are we gonna were really grapple with this again. Hopefully, when, when were passed, the worst of the corona virus crisis will be able to. with this, but in the meantime ridge the three provisions are expired because the house voted Therefore, as a bill at the end of last week and left and the senator,

on Monday worked out this compromise so that the five prevent actually expired on Sunday night so until what I presume is going to happen is now that the centre as fast as seventy seven day, extension as soon as the house gets back Monday, I assume ill acid and will at least up we'll take the cap to the end of May, but will say Ok! Well, that's all the time you have this week in listening to a national, you podcast, spot gas will produce body incomparable sir shit thanks everyone for listening and stay safe and thank you. Animal hearty thanks register referred to.