The New Neo

Here’s Andrew C. McCarthy on yesterday’s Mar-A-Largo raid:

There’s a game prosecutors play. Let’s say I suspect X committed an armed robbery, but I know X is dealing drugs. So, I write a search-warrant application laying out my overwhelming probable cause that X has been selling small amounts of cocaine from his apartment. I don’t say a word in the warrant about the robbery, but I don’t have to. If the court grants me the warrant for the comparatively minor crime of cocaine distribution, the agents are then authorized to search the whole apartment. If they find robbery tools, a mask, and a gun, the law allows them to seize those items. As long as agents are conducting a legitimate search, they are authorized to seize any obviously incriminating evidence they come across. Even though the warrant was ostensibly about drug offenses, the prosecutors can use the evidence seized to charge robbery…

The ostensible justification for the search of Trump’s compound is his potentially unlawful retention of government records and mishandling of classified information. The real reason is the Capitol riot…

…The former president’s apparent violations of government records and classified information laws gave the DOJ the pretext it needed.

But a former president of the US and member of the opposition party is not any old drug-dealer. And the DA pursuing said drug-dealer is not a rival who is in danger of being politically bested by the person he is intent on arresting. It is another type of “game” to pretend otherwise.

McCarthy does acknowledge this aspect of the situation:

No former U.S. president has ever been indicted by the Justice Department. I do not believe the DOJ contemplates prosecuting a former president for mishandling classified information, much less purloining other government records. I especially doubt it when we are talking about a former president who could be the Republican candidate opposing the incumbent Democratic president in the next election.

Rather than conclude that Garland and company are political operatives executing a plan to harass and perhaps ultimately arrest the opposition, McCarthy prefers (at least for now) to assume that this means Garland has some sort of smoking-gun type goods on Trump:

The Justice Department’s legitimacy, which hinges on the public’s acceptance of it as a non-partisan law-enforcer, would be at risk. If Garland is going to charge the former president, he has to be sure. He has to be able to convince the country that the public interest strongly favors prosecution.

That’s an indication that, despite everything, McCarthy remains in some sort of naive bubble in which the public still believes this DOJ is non-partisan. My sense is that just about everyone on the right believes the DOJ and Garland are highly partisan, and the left is probably split between those who think the DOJ is objective and an equal number who know it’s quite partisan (favoring Democrats, of course) but think that’s just peachy-keen.

Here’s the final paragraph of McCarthy’s column:

In a powder keg, AG Garland is trying to turn up a smoking gun. Unless he can make a convincing violent-crime case against Trump, though, an indictment based on extravagant theories of fraud or mishandling of classified documents will blow up on the Justice Department.

McCarthy is showing more naivete here, I think. He is ignoring the extremely volatile nature of the search itself. He is ignoring the fact that so many Americans lost trust in the DOJ quite some time ago. He is also ignoring the fact that Garland and the others may not care what the American public thinks as long as they can get Trump.

One more thing – if they wanted to do this and have the best chance of avoiding the appearance of partisanship, why not appoint a special prosecutor? It’s almost certainly because they can’t risk having an actually nonpartisan person in charge, although it probably wouldn’t be hard to find a biased person with a supposedly good record, like Mueller way back when. At any rate, the Democrats want to be fully in charge of this, although for “bipartisan” cover they have allowed some rabid NeverTrumpers such as Liz Cheney into the mix.

Here’s how the special prosecutor statue is supposed to work:

A special prosecutor is a prosecutor who is independent of an office that would normally exercise jurisdiction in a criminal investigation—to avoid potential conflicts of interest or to facilitate subject matter area expertise. At the federal level, under 28 CFR § 600.1, a special prosecutor is referred to as a “special counsel,” and may be appointed by the attorney general to criminally investigate an individual or matter in cases where a Justice Department investigation would present a conflict of interest, or in other “extraordinary circumstances.” Under Supreme Court precedent in Morrison v. Olson, Congress may also appoint a special counsel through the passage of legislation.

If this isn’t a case in which the DOJ is completely compromised, I don’t know what is.

Yesterday, before the raid was reported, I described McCarthy this way:

Andrew C. McCarthy is one of those writers who’s sometimes very very good and sometimes not at all good. You never know exactly which McCarthy is going to turn up, except that he tends to be good on anything to do with Russiagate and ungood about January 6th.

That’s not just an idle statement. I’ve followed McCarthy for two decades, and I found his reaction to January 6th highly emotional and his judgment questionable at best. But he often is a good writer about legal matters, and that history is one of the reasons I continue to read him and occasionally to write about his pieces. But to refresh your memory on his initial reaction to January 6th, there’s this post of mine written on February 15, 2021. Here’s some of the relevant portion:

Some of you may recall that Andrew C. McCarthy hopped on the “Sicknick was murdered by rioters who hit him with a fire extinguisher” bandwagon. There was some discussion here of that in the comments in this thread. I see now that McCarthy has issued a sort of mea culpa. I’ve noticed that McCarthy is one of the few people who can actually say he was wrong without offering a ton of excuses [emphasis mine]:

“…I am one of the analysts who uncritically relied on the Times’ initial reporting, deducing from it the conclusion that Sicknick had been “murdered” by the rioters — not a long logical leap if you credit the assertion that a police officer was bashed over the head with a lethal object by rioters who were intentionally and forcibly confronting security forces. Julie Kelly took me to task again yesterday for having “regurgitated” the “narrative that Sicknick was murdered,” which I certainly did do — although I am not, as she describes, a political pundit of the “NeverTrump Right.” Because I repeated a very serious allegation that had not been supported by credible evidence from identifiable sources, I thought it was important to make clear, to the extent it is in my power to do so, that there is now immense reason to doubt the original reporting — while confessing (with a link to the column in which I included the “murder” allegation) that I was as guilty as any other analyst or reporter who amplified the dubious account.

“Second, and more significantly, the death of Officer Sicknick became a building block for the House’s impeachment of former President Trump and of the allegations posited by the Democratic House impeachment managers that were publicly filed in their pretrial brief on February 2. By then, there was already substantial reason to question the fire-extinguisher allegation.

“Prosecutors have an obligation, rooted in due process and professional ethics, to reveal exculpatory evidence. That includes evidence that is inconsistent with the theory of guilt they have posited. Even if Sicknick’s death was causally connected to the rioting, prosecutors would be obligated to correct the record if it did not happen the way they expressly represented that it happened. The House impeachment managers had not done that last week when NR published my column raising that issue, and to this day, although the impeachment trial is now over, we are still in the dark about the circumstances surrounding the officer’s tragic death, at age 42.”

In his article McCarthy offers a pretty good analysis of what the Times did and what the House managers did. And I don’t think McCarthy is happy with himself, either.

McCarthy is correct that he’s not a NeverTrumper, and he’s a smart guy and I think a basically honest one. But I wrote this in a previous thread about what I think is going on with him:

“I think McCarthy has long had a couple of problems. The first is that he’s somewhat naive and trusting (for example, of Comey, against whom he finally turned but it took a long time). The second is that he has an aversion to Trump. That doesn’t mean he won’t defend him at times – he will, but he has to overcome his natural aversion to the man in order to do so, and he’s often willing to think the worst of him. It’s almost a relief to him to think the worst of him, I think, so in this case he jumped right back into it for a while. But his basic honesty led him out of it again.”

It’s still a kneejerk reaction of McCarthy to think the worst of Trump and the best of someone like Garland, and in this McCarthy is typical of a lot of the Republican pundit class. I don’t think that he, or they, will ever change.

It’s instructive to see what Alan Dershowitz, nominal Democrat, is writing about the raid:

The more appropriate action would have been for a grand jury to issue a subpoena for any boxes of material that were seized and for Trump’s private safe that was opened. That would have given Trump’s lawyers the opportunity to challenge the subpoena on various grounds — that some of the material was not classified; that previous classified material was declassified by Trump; that other documents may be covered by various privileges, such as executive or lawyer-client.

Instead, the FBI apparently seized everything in view and will sort the documents and other material without a court deciding which ones are appropriately subject to Justice Department seizure.

Searches and seizures should only be used when subpoenas are inappropriate because of the risk of evidence destruction. It is important to note that Trump himself was 1,000 miles away when the FBI’s search and seizure occurred. It would have been impossible, therefore, for him to destroy subpoenaed evidence, especially if the subpoena demanded immediate production. If he or anyone else destroyed evidence that was subject to a subpoena, that would be a far more serious crime than what the search warrant seems to have alleged. It is unlikely that there is a basis for believing that the search warrant was sought because of a legitimate fear that subpoenaed evidence would be destroyed.

Defenders of the raid argue that the search warrant was issued by a judge. Yet every criminal defense lawyer knows that search warrants are issued routinely and less critically than candy is distributed on Halloween; judges rarely exercise real discretion or real supervision…

For zealous Trump haters, anything done to Trump is justified. For zealous Trump lovers, nothing done to him is ever justified. For the majority of moderate, thoughtful Americans, however, the Justice Department’s raid likely seems — at least at this point in time — to be unjust or needlessly confrontational.

What is the difference between McCarthy and Dershowitz? It’s not so much their political affiliation, because both have a similar distaste for Trump himself but a willingness to defend his actions at times. I submit that it is their differing backgrounds: prosecutor for McCarthy and defense attorney for Dershowitz. McCarthy sees this as a typical prosecutor gambit and Dershowitz sees it as a prosecutor violation of basic rights.

I think one of the most important aspects of the case – aside, of course, from the fact that Trump is this administration’s most threatening rival at the moment, and it is the administration’s DOJ pursuing him – is that the FBI and DOJ have a documented record of biased investigations of Trump and actual lies about him in order to further those investigations, as well as the framing of some of the people who have worked for him or with him. Much of the public is well aware of that and doesn’t trust these entities at all, and rightly so.

And they call Trump “divisive.”