Welcome to the Mccarthy report TAT. Yes, we're Irish Larry discuss with any Mccarthy the latest legal and national security issues this week, police reform and the latest on the flank case relating to an ash review. I guess you could say that broadcast on Asher you dot com or do I have? You will be easier for you and better for us. He made as part of your feet at noon. The stream serves as out their response fi to Itunes, and if you like, this podcast, especially like any Mccarthy, given the glowing indeed gushing five star views they deserve on Itunes, said now that further,

Do I welcome to this very podcast through the miracle of the fear, tat, complex, app, none other than party they reach our good Anti harry you boy, my head spending is just this too much come in at us all at once. In Now, there's a lot of the there, so many things coming out: a sofa girls also some important stuff that sir that's out there, that you can't even get out, because of which are still call Dron right now, but we do the best we can. So, let's dig in on something as important. If there is anything that can come out of this whole absurd after then, the killing of of George Void be some reform that make sense of the police department.

You know, knocking out a confederate statute would have you think, that's obviously knocking at work, help one where the other on on the real issue and TIM Scots, First Senate Republicans, is working on a police reform bill, Sir we're getting early early sense.

Of what it might be in getting the outline and you're you're, not necessarily unanswered with it. So, let's, let's take through few items that might be in the bill and that certainly been discussed a lot over last week or two a qualified immunity. This is a really complex thing: I've not fully read up on its its hideously complex. Other courts have come up the current version of it, but basically cops can't be sued civilly for effort for wrongdoing and there's been a major push that even some concern. These are on board with Andy the two to scaling back qualified majority or any get it entirely. What do you make of it? Yeah? I'm really glad rich that that the in our Pereda Horrible's it we will have to go through here that you started with qualified immunity because

The irony here is that a lot of what we're dealing with is the same kind of syndrome. We see after something catastrophic awful happens and I'm thinking in terms of obviously nine. Eleven, where you get a bunch of bad ideas that have some mob momentum, because something horrible is happening and Congo precedes the Need and Washington proceeds to me to be seen its doing something, even if it's not necessarily something that's particularly effective, but it needs for like its active. And then you have certain things that Congress should do and should long ago have done, and the reason that there is a mass is because Congress who sat on its hands and not acted and and

dictated to the court's the abdicated to the executive. So in this whole array of ideas that are now percolating in Washington, qualified on immunity goes to the less qualified immunity is something that Congress should have dealt with decades ago, because this is actually something that's in congresses. Can that is an issue because of Congress and that they just essentially delegated the whole thing to the courts and as a result, we have a doctrine, that's kind of all over the the map, and if I could just. Explain, Congress enacted a statute in the called the Civil Rights ACT of eighteen. Seventy one and in Kenya

with that in furthering the ability to achieve what the civil rights acts were, we're trying to achieve, and the civil rights amendments possible war. The the enactment statute that Congress and acted allowed for civil lawsuits against basically state officials, including state and and municipal police. It didn't habit thing in it about immunity for the police, it it had a cause of action for what could happen if somebody

under the collar of law violated your federal rights, and there was nothing in it that her. That said, anything about immunity and when the court's began to interpret it, they said, while they couldn't possibly have meant not to have to give anyone immunity and what they were. What they were thinking about in the first instance were things like state judges and prosecutors in court proceedings, because corporate things that you do officially in court proceedings, just like things to Congress, does in congressional proceeding just put the idea. She must have immunity for that, so that those proceedings for it can be completely

oh bust and people can act without having to worry about the being sued for what they testify to and the like, so that there may have been some sense of that. That eventually got extended to police officers and, as the doctrine evolved over time and as Justice, Thomas and Justice Gore such of have written about in that there is at least three judges on the court. I think we're ready to give a long look at qualified immunity. Corset, Thomas and the cabin I at least, but what happened? It was in the seventies, with sixty seventies into the eightys. We had this cut the kind of spate of

what's taking that they were at liberty to re. Write you not to write their own legislation and write your own statutes and in that Spirit they kind of put a gloss on qualified immunity that essentially said that police officers and other state officials had immunity from four alive

edged wrong, doing misty since negligence, recklessness and alike, as long as they didn't have notice that what they were doing might be against the law and the way that doctrine I think I'd fortunately got interpreted, was basically unless there was a precedent that said that certain activity was on powerful. You could engage in the activity and you couldn't so on the basis of it. So you had, for example, one lunatic suit where the police were alleged to have stolen hundreds of thousands of dollars in a way in a search warrant situation and the people who had the money tried to sue the police.

officers, and the court ended up thrown the suit echoes the said. While there wasn't anything on the books did no precedent. That said that they couldn't steel money. I mean how. How nuts is that that, like that, like, unless dismal, unless there's a ruling on the books, that tells you that you can't do it, then you can't do it's kind of like that old Seinfeld episode with George as sex, with a b, the cleaning lady in the when he's working for the agri Never that wanted. Not they ask him about it. I did you really do that and endorses that was done long because they told me there was if their. When somebody told me that was wrong, that there was a rule about that. I would have

so this is what qualified immunities become. You know, no matter how outrageous the activity, if there's nothing on Europe, there is no precedent. That's like on point that says you can't do it. Qualified immunity apply. So that's a long, winded waves of trying to show what the problem is with qualified immunity. Now here's the real issue- and this is why this this needs rich, a long look. It doesn't need to be. It can't be something that gets done in the heat of a moment, because there is real consequences that flow from this. We need to find a strike point. where you can bring suits against police officers for obviously lawless activity for obvious recklessness and even extreme negligence, but at the same time not have it so that the

You have to worry that everything that they do in the way of ordinary policing, which sometimes involves the use of force, is going to involve a lawsuit, because if you do that, then you're gonna get the police paralyzed. So it's not. This is not to say that we shouldn't get rid of qualified immunity, at least as it exists, but there had you have to replace it with something. If you just get rid of it, you know it's not like it. It may have. It may have evolved into something that it shouldn't have evolved into, but the original idea was not crazy. If you don't, if you don't give them some form of immunity for regular policing, then you're not going to get the regular policing that you need to preserve order on the street and think. Unfortunately, what they want to do is there so outraged by some of what they ve seen there just say

we're gonna just get rid of qualified immunity, and it's not it's not the craziest argument of all time, because the euro, the statutes that the statute that allows lawsuits against the police and the the Supreme Court case called billions which extended that right So that people can now so federal officials as well as state officials, there's nothing here either of those doctrines that necessarily provides immunity for any kind of policing. So it's again, if something Congress should have done a long time ago address the long time ago and it hasn't and as a result, we now have to worry that it gets. I don't think this is going to happen, but we have to worry that it just that they toss the baby out with the bathwater. So how

she'll coats and a federal banned on chuckled, see I don't you know in principle. If you were saying the thing that direct Chauvelin did to Mr Floyd should never be done. Who could argue with that? But the thing is you don't love and let me just say this the general proposition, if all this stuff was so easy, a lot of it would have been done long ago, and the reason that that there is resistance to categorical bans is that we need to be precise about exactly what is being outlawed there are situations on the street where the police have to be able to use superior force,

and there may be some holds that they are able to apply, which are not at least if, if you ve been trained to do it or not dangerous or their mighty situations, where there are scraps on the street, where you end up in a job in a choked situation, will you don't intend to end up in a job situation, but the police officers life is being threatened? So I just think that I dont, I wouldn't say no categorical ban, but I'd say why doesn't Congress do with Congress is supposed to do? Let's have hearings on this and have cops, come in and testify in exports forbidden testifying about. You know what what may sense to permit and what, if there were things that can outright be ban, they should be banned and whether this should be being done at the federal level to me very questionable, I don't. I don't really something that just yet just the city should local locality should figure out

yeah, I mean this: isn't it to stay commerce? Writer me what what authority do they have to jump in and start regulating state local police? Now how about no, not rates which has been a lot of attention to it? Well get another! Well, you know rich. You can understand that there is a lot of attention two things to get abused and nobody was more aggravated about no knock warrants Then I was, for example, when Andrew wise men in company decided to to use one on the very dangerous poor man afford when he was in the middle of two days of cooperative testimony before congressional committees. You know I mean that was just one of these things where they were trying to use hardball tactics to intimidate em and they did it because they could. Got some judge to sign off on it.

The general rule of thumb is that search warrants have to be executed between six o clock in the morning at ten o clock at night, and the police are supposed to knock on the door before they and to your home, but they are. There are certain situations and mission very rare rich. But it does happen where you have, for example, armed narcotics dealers in an apartment. Let's say, we're there. You know keeping money or processing drugs and they are now to be highly arm. They are often much better armed than the police are, and they are dangerous hardened criminals, and if the police knock on the door, may not answer the door, they may shoot toward the door, which happens and

those situations, I believe the prosecutor ought to be able to go to the court and say we have an extraordinary situation in terms of danger here, where we should be able to execute Warren outside the normal times. That is when people inside might ordinarily be asleep, or at least most of them, and we to be able to go right in rather than not, because it would be too dangerous to knock, and that should not be something that retaining granted. But the idea of it not being available would be an enormous advantage to some very violent, dangerous criminals. So here I think yes, there should be a strong presumption against no not warrants, but to say that they are all together forbidden,

he's going to prevent the police from doing investigations and cases against the most dangerous criminals that we should want them to be investigated. And again this is something that has enough avert shit. Should throw government be mandating? What happens with is one where the other, or is it well the federal government? This is one of those situations in which I think we're the federal government does have, even though I dont like more federal legislation in sir, in in law enforcement areas than is necessary. I get up. The federal government has a right to to make rules for federal police forces and the FBI executes warrants just like the, but just like those states that he cops do, and the fact

is that when Congress makes federal standards that are based on constitutional principles and especially when they start being litigated in federal court, it's pretty typical for them to be adopted by the states on the theory that, if this is what the federal constitution is interpreted to require that the states also adopted too. So it's fair enough to think that anything Congress does in this particular area is, is something that is likely to be to be echoed or to be copied at the at state level. But I'd die. You know, you're the primacy. Your question is exactly right: what authority does the federal government have to dictate

to the states here and if I could just on this question, you know this two things that that need to be addressed. One is the presumption of the framers. Are you not for all the libertarians out there who are making these? So you know arguments about what Congress or to do to try to limit what the police are allowed to do be presumptuous constitution is that the states were going to be supreme in terms of their internal affairs, which very much at the much included law enforcement and policing. So there's a big question about how appropriate it is full Congress to be doing this kind of prescribing in the first place, and then the second thing- and I wrote a poem about this for the website this weekend, where this week, you know the thought right now that the federal government oughta be dictating to the states about how policing is done under

circumstances where it clear that the federal government is in very good at running. Federal police agencies is really to me untoward. I mean it's very presumptuous of them to say under circumstances where you the FBI scandal, where it's, the top echelon, the FBI violating due process left right and centre. You ve got the Pfizer Court saying that the intelligence community has an institutional lack of candy. We have an atm scandal. We never got to the bottom of. We have an arrest scandal. We never got to the bottom up. They are not very,

get running, federal police agencies, whereas you and Heather Mcdonald had this great talk on the other days during this week. One of the things that Heather points out is strictly solely by municipal police and mainly in New York. They drove violent crime rates down between one thousand nine hundred and ninety, and now, for example, is Heather pointed out the other day sides down by like eighty six percent, and do you are that's because of the way that the city and the states to policing. So you know query as far as I'm concerned, who are the feds to be telling the states how it's done. One, to my mind, it looks like you have a lot of success stories at the state and city police level.

we'll right now the feds don't have much to brag about in terms of how they do policing mandating body cameras. Yeah I get on this one I think senator start his proposal at least makes more sense. I think the body cameras are a good thing, but there you know how expensive a proposition is: an you know what they can and cannot be used for, what issues there are and armed with them. I think that would be worth haven't hearings over, but the Bottom line is, I don't think the federal government has the power to dictators, distant sate and what's got wants to do is make federal money available so that states can can buy more cameras for their police departments, and I think that sensible and the use of force registry.

Well, you know, but again I would prefer to see the stuff how handled at the at state level will you can deal in a kind of a granular way with all the downside of this, but you know just understand that what is going to happen if you have a use of force registry, is this going to be a use of force complaint against every cop who has to use superior Worse in order to arrest somebody who is resisting arrest and it's a very easy thing to do- to file a complaint against somebody who's just doing his job or her job in good faith. Now think, it's perfectly fair to say, look at somebody like Sheldon who had seventeen or eighteen complaints over the course of a nineteen year career, and this. Obviously, some corroboration for at least some of those complaints

there has to be a way to weed out the bad cops and, at the same time understand that the good cost, because you're dealing with bad guys are gonna, be the subject of complaints that that are true and there's gotta be something more than just like the number of complaints. We have to be able to investigate these things I think more thoroughly and get rid of bad cops to me. That's got a lot more to do with piercing the union contracts which provide protection against doing those kinds of investigations, and I dont think you correct that with a registry. I think the way that you correct, that is, by making it easier to investigate each incident and scrapping aside a lotta protections that are in these crazy public.

Union contracts which, by the way, mostly these statistics but we're trying to get around a lot of them. We negotiated by blue state democratic credentials rang one now complaining about the idea of a lot of this is blue on blue issues and has to do with our factions within a democratic party, relatives twins two parties and then finally, something there were hearing a lot about community police. Yes, silk: community policing is on it. it's. It's a pleasant sounding label for what we have always down as a kind of you're, the bleeding heart liberal approach to criminal justice where You know we're gonna assume that no

He really has agency nobody's responsible for anything law enforcement and particularly investigation and prosecution, or not the best approaches for crime. We ought to get down to root causes. We need to deal with poverty. We need to deal with hunger. We need to deal with whatever the laundry list of things we need to deal with is an spit, it's basically a euphemism, for a very familiar policy agenda that oh Torricelli, failed in the sixty seventies and eighties until it was finally superseded by and approached the policing that was based on intelligence and broken windows, theory and the eye.

Dear, that you had to project the notion that the laws were being enforced and you had to do smart policing that was data driven and based on data about where offences were happening, so that the police that you had could end up in a fluid dynamic way be deployed to the places where the crime is occurring. That kind of policing is what Democrats now call racial profile and that's because they they operate under this lunatic. Disparate impact theory that if a group and let's, let's just cut rights of the chase, if you have young black men and they are offending at levels that vastly outstrip their percentage of the overall population. The conclusion where to draw from that, is that the police are racists, not that the black man

refunding at a level that higher than there than what would be representative of their portion of the population and that simply as far as Heather- and you discussed this week- that simply a ridiculous proposition, it not only define common sense. The rings, and we know about offence rates. An offence behaviour is not because of how the police respond to particular communities. It's because crimes have victims, so we know who gets killed and we know who gets rob because they complain and they forget they file, complaints and that's the basis on which the police we,

and as a result of that information, we know that the minority groups and and black males in particular our offending at rates that are higher than what their relatively paltry percentage of the population is. That is not racism in any way to have two, the police to have to deal with that as their reality. But I think that, as long as we are going to operate on the fiction that, if what is deemed to be inordinate number. Minority. Julie, minority men are having confrontations with the police and are put through the criminal justice system that that means the police and the justice system are institutionally racist or systematically.

This is, then, the if we're gonna operate on that fiction and we're gonna go. Do a lot of stupid stuff and some of the stupid stuff is this whole idea of community policing which in the Obama years, came under a different heading. They call and you'll hear a lot about this, which we actually should homeowners pretty we're home in on this pretty carefully, because I think of Vice President president by for example, already a number of his public statements has made reference to Obama, said implementation guide for twenty first century policing, and that is their community policing Bible. But basically you know they call it unity, policing and who could objective. Community policing, right eye you and Heather talk about it. This we're gonna come you both the cop gets

like all ready walked around the community. Who can objected that except that's not what it is, what it is as a whole agenda and a whole approach to addressing crime. That is very different from the approach that actually in a revolutionary way depend crime in the ninety nine days, and it reminds me a lot of what Obama did in connection with trying to water down and reverse a lot of Bush Cheney Counter terrorism. So they introduce something that was called countering violent extremism and you don't. You sit back and say what who the hell can be against that we all want to counter violent extremists and right, but when you read the fine print, what it was was a a programme which denied the ideological basis of jihadist terrorism and basic. We took the position that you know these could be a bunch of crazy right wingers or they could be a bunch of guys who you know come back from common,

nearer. You know their upset with the world that they're just as likely to commit the next nine eleven is, as you know, a bunch of men who happened to be Muslims, and that was you know. That was what that whole approach was about. Well, this is the domestic law enforcement version of that yes, so less positive, and they will move on to talk a little better. That lays the flint case just one blood for an hour plus digits trips and service national view, dot com will get the need to pay walk out of your way will mean you see, fewer adds will give you the ability to comment on articles and boy posts in all sorts of other benefits as well, but drawn by leaps and bounds has caused much go check out some of the first I'm offers. We got gone on the website any given time and joint tens of thousands of your fellow and our readers in joining this community. Please sign up for an hour plus so Andy with had

but back and forth. Now, in Flint case words latest well wish. I spent the two hours of my life tat. I can never get back this morning. Listening to the oral argument in the petition for a man, Davis or rid of men, Damosel TAT, General Flynn and his council, one Sidney POW have sought from the they see Circuit Court of appeals, essential the upshot of which is to try to get the court of appeals to order judge, Emmett Sullivan, to dismiss to grant the Justice Department motion to dismiss the prosecution of. When- and it really is one of these litigations rich- that everybody thinks be tiptoeing around the reason that this is legally a mess

and that is that Congress put something that's unconstitutional in a rule of criminal procedure, federal rule forty eight day which governs motions to dismiss prosecution. So Congress required that the said that the government or the Justice Department can dismiss a prosecution with leave of the court and the reason as we discussed before, so I won't belabor it too much. But the reason that's problematic is it's an exclusive executive branch And here the Justice Department to decide whether to dismiss a criminal prosecution or to commence one that that's unilaterally and executive branch power and what would Congress did was basically give the court a check on it, which the court really does

have so what everybody is struggling with is well. What is leave of the court mean what could possibly have Congress meant by by putting us in their when I think you're on. The fact of the matter is what, but you know what they meant was what they do on occasion, which They don't like the idea that the executive has unilateral power in the system, so that aid they put he's in legislation that suggests the courts have power to oversee or or you don't get a veto on that stuff and the court's dawned and what ends up happening is the case law kind of makes. It clear that this is basically a rubber. stand that a ministerial act, because they don't want to come out and say that you notices and exclusive power of the executive?

but it's very flows. A power, the executive self and, as a result of Judge Sullivan, doesn't really have a legal basis to dinner to decline, to dismiss the case, but he doesn't want to dismiss the case because he thinks one is guilty, so we- have this fiasco going on in the court. Now, where he's invited. All of these make us breeze, including remarkably rich, the brief that by John Gleason, the former federal judge it was filed this week, which was a very hot partisan political document that went on for seventy four pages and it is not at all shied. It expressly accuses president Trump and attorney general bar of corruption, which is you don't give

the fact that this is a guy who was appointed to give the judge advice on how to handle the case. It was quite an eye opener, even though Gleason is a very poor political guy and and no one who knew him would be surprised that he harbours these attitudes but too to express them under any circumstance, was somewhat stunning and to have it did not too much has been said about this rich but Jim we speaking one in a higher court, had now has Jurisdiction of a part of a case. It's inappropriate for the district court to be acting on the case in a way that shapes the record at all. Once the court of Appeals has intervened and name ordered brief and is is closed and are about to have oral argument to have a bomb like that dropped. Two days before the court of Appeals was gonna hear the case was something that really should not have been done and it was very presumptuous of Solomon to allow it and the one day,

You I took away from, or one of the things I took away from the hearing today is the court of appeals didn't like it Judge Karen Le Crap Henderson, who is the senior judge on the three judge panel today referred to Gleason's brief, is over the top and intemperate, and you know they didn't. They didn't dwell on it, but it was clear they didn't they didn't like it now is economically, France. No, I don't think so. I think the bottom line here, rich, is, is, is kind of what we suspected when we discuss this earlier two or three episodes ago, which is that for all of the young, the theatrical that are going on here and all the atmosphere that are going on here, Sullivan hasn't done anything. Yet now is he's taken these amicus briefs, which he probably shouldn't, have done but even said the

I'll today in a very difficult moment for her in the argument ended up making a concession that that the Sullivan may have inherent authority than others, nothing in the rules that would permit these amicus brace space. So he's he's allowed these brief to happen hasn't held any evidentiary hearing jet at this point, where he would pry into the justice departments decision making and he scheduled a hearing on July sixteenth, and as the remarkably his lawyer, Beth Wilkinson, who argued the case for him today. The court of appeals It was almost like she was operating in an alternative universe. So her arguments to the court was, I don't have any idea why anyone would think a senior experienced judge, like Judge Sullivan, would do anything but follow

the law and, if its required under the role that he dismissed his case, there's no reason on gods greener. If anyone should think he won't dismiss the case and in the meantime you don't love, you see, he's he's conducting a political campaign and doing everything. Can't be damaging, but she actually was taking the position that I don't understand why anyone would would feel the judge, Sullivan, wouldn't follow the law and the Justice Department and Sydney pal both had taken. That, while what's going on is highly irregular Sullivan hasn't done anything yet and they could walk into court on July 16th and he might say, motion granted the cases dismissed. So so so what you guess of, where it goes cuz from here

I think the court of Appeals will deny the motion for rid of men Davis, but they will do it in a way that conveys to judge hand a judge Sullivan that they expect him to do what his lawyer suggested today that he would do, which is follow the law that he that they would be very concerned if he tried to do things like hold evidentiary hearings into the Justice department. Deliberations and thought processes, but there I think they're. Then they did not seem to data, be inclined to not let the July sixteenth of hearing go forward, but I think they convey pretty clearly that, if you know, if Judge Sullivan has in his mind, do and more wild and crazy stuff, they then

They stand ready to intervene at that point and at last topic, Lindsey Gram, talking about a subpoena fast, was gone out with that what it means: riches after three and a half years, When these had enough. So he's he's, thou go to do what they should have done years ago and would have been helpful to do years. Younger rich, if you remember back in in twenty seventeen Devon Nunez, was like waging a lonely campaign to try to get Justice Department to provide documents to provide discovery, to get the FBI to provide documents and discovery that went to the activities that took place in the irregularities that took place in the and at that point in time, president trumps hands work. What kind of tight I mean? I complained

long and loud many times that you don't trump, was the only person in the government that actually had the authority to order the stuff to be disclosed. But to be fair to him, as his lawyers pointed out. If he had ordered information disclosed, he would have been accused of obstructing the more investigation which, of course, he was accused of in anyway. But so at that point in time, what really would have been valuable would have been if the Republican controlled Senate had stepped up to the plate, and demanded disclosure and conducted the kind of hearings that Lindsey Graham wants to conduct now in the Judiciary Committee that he leaves. So, of course he didn't do it back. Then he wasn't a chairman then gradually was, but it was obvious fact than that that that the house needed help in the Senate turned a deaf ear to them. So now flash forward three and a half years we

that fifty Senate days to go until election day and we're in the middle of a situation where John Durham of the Justice Department is conducting a serious criminal investigation of exactly what it is that the Senate now wants to suddenly look into and serve subpoenas and would invariably happens when there's a serious criminal investigation is one of two things. If the witnesses are witnesses that door on needs to make his case, assuming he's still trying to build a case which the attorney general suggest that he is, then the Justice Department is not going to let Congress get those witnesses, they're not going to give blood to send to have them and the Senate's not going to want to fight. That point could still be in

I'm looking like they are interfering with dorms investigation. On the other hand, if the people that they want to talk to or the people who are potential subjects of Durham's investigation, that is, people who potentially could be charged. They have a live fifth amendment privilege, so their lawyers are going to tell the Senate that, obviously given the given the jeopardy that they could be in based on the criminal investigation, they're, certainly not going to come in and testify under oath in the Senate. So this is just the iter it's it's it's pure theater and and nothing but- and I must say nobody knows that better than Senator Graham does he's a very experienced military prosecutor, defence lawyer and judge who was also a practising defence lawyer. He knows these people were knocking come into it

testify at this point in time, and as a result, you know, if you don't, if you can't get the witnesses that are important to the prosecutors, and you obviously can't get the subject to maybe charged in the investigation. What kind of witnesses is the center going to get there going to get witnesses like rod? Rosenstein? Who didn't do what you know? According to his testimony, he didn't know anything, and he was a particular jury- is to find out anything. So by the time you get to the end of the hearing, you ve learned nothing about what the subject matter of the hearing is. Well, that's all the time we have for this week. You been listening to a national view, part gases, part gases and produced by the incomparable. Sir shitty thanks everyone for listening and thank you and your garthie thank for it