RADIOApril 29, 2024

The BIGGEST Issue With Trump’s SCOTUS Immunity Case

Former president Donald Trump is battling multiple legal challenges. But everything could change if the Supreme Court rules that he has full presidential immunity. However, there’s a big issue. Former Assistant U.S. Attorney for the Southern District of New York Andrew McCarthy joins Glenn to explain why he believes the Court may NOT grant Trump full immunity. Plus, Andrew weighs in on whether Trump has a chance of moving his trials away from New York and Washington, D.C. and why former presidents haven’t been taken to court before.

Transcript

Below is a rush transcript that may contain errors

GLENN: Andy McCarthy, a National Review contributing editor, the Institute's Senior fellow, and a former chief assistant US attorney general. We won't hold this against him.

He was a former US attorney in the -- in the district of Manhattan.

So we'll just leave that alone.

Andy, how are you?

ANDY: Glenn, I'm doing great. How are you?

GLENN: Very, very good.

So let's start with the big story. I think, and that is the Supreme Court.

And what they were arguing last week, can you give me your honest take on what -- what this is really about for the future. Beyond Donald Trump. And how you think this will affect what is happening with Donald Trump.

ANDY: Glenn, I think it's important that you frame a question that way. Because it seemed to me.

And I reread the transcript over the weekend.

After listening to the oral argument.

The court is a lot more concerned, about the presidency, than about Trump.

GLENN: Sure. Should be.

ANDY: Yeah.

And it's -- it's an important point make. Because a lot of the coverage, has been this hysteria over whether, you know, the Trump packed Supreme Court is in the tank for him.

And they're going to get rid of Jack Smith's prosecution.

I don't think that will happen at all.

It's possible that Smith won't get his case to trial.

Depending on what the court does.

What I think the court is going to do, is send the case back to judge chuck in. Who was the trial judge in Washington. With instructions to sort out what things in the indictment against Trump are what you would call official acts, that might arguably be immune from prosecution, because they go to the core responsibility of the presidency.

And what are private acts or private wrongs. That he would not have immunity for, even though they have been enduring his presidency.

But the -- the upshot of the questioning, of the lawyers. Including Trump's lawyer, and this is particularly by Justice Barron. Justice Kagan. Trump's lawyer admitted that there's a lot of conduct charged in the indictment, that is private conduct, that really wouldn't be covered by an immunity claim.

Even though Trump has been saying a lot of stuff about absolute, complete immunity. And I think the concessions he made in the argument, that is John Sauer. Trump's lawyer, would be enough. If Smith was willing to tailor his indictment, down to the things that Sauer conceded, they could go ahead with the trial on just those acts.

He would lose a lot of evidence, but he probably should.

GLENN: So what are some of the acts that could fall under -- you know, private, and so you could prosecute. And what are the acts that are the president, and you don't prosecute?

ANDY: Yeah. So the one bright line that we can take away from this. Is that there seems to be consensus, that there is a -- a divide between office seeking, and the carrying out of the duties of an office.

So if something is purely in the nature of trying to get reelected. That's deemed to be private. Because it's not part of the duty, of the presidency.

It would be the same for anyone who was seeking office. Whether that person was an incumbent or not.

And then there were other things, that are clearly presidential.

So just to give some solid examples. That came out of the argument. Trump's lawyer conceded, that if Trump made a private scheme with private lawyers to get electors, designated for him and to supply documents to the Congress. Suggesting that they were the authentic, actually slate of electors, designated by the state.

That would be private conduct.

Because it's -- it's purely office seeking. And he carried it out, only with private lawyers.

On the other hand, there's an allegation in the indictment, that Trump tried to use the justice department. To signal to states, that there were serious concerns about fraud. And consider both removing the attorney general, when he got pushback. And considered sending a letter, that they never sent from the Justice Department to the state of Georgia, to tell them, you know, that they needed to do more scrutiny over what happened in the popular election. Trump argued very strongly. And I think the court will probably go along with this. That that is the president's control over the Justice Department, is -- is purely a presidential act, that has no part in a criminal prosecution.

GLENN: Correct.

ANDY: On those are the kinds of things that they are talking about sorting out.

GLENN: When Trump sat another group of electors, or tried to. That's what -- that's what the friends of Dershowitz did. I don't remember all of the attorneys. In the 2000 election.

That's what they were recommending, to be done. You have to do that. Or you have no case.

ANDY: Yeah. Well, let me just be clear, Glenn. They're not saying that Trump wouldn't have a defense at trial.

What we're talking about now is purely immunity. That is who he got the trial from happening in the first place. I think there's significant defenses to the fraudulent electors playing. Beginning with the fact that the electors themselves, didn't think they were fraudulent. They thought they were contingent.

They thought they were basically sitting in as a slate of electors, in the event that Trump prevailed either in the state courts or in the state legislature, to throw out the popular election. Then that would activate.

But they weren't trying to fool anyone into saying, that they were the actual electors that had been certified by the state.

GLENN: Can you get a fair trial on that? If indeed he has to go to court?

ANDY: Well, I think it's tough for him to get a fair trial, in Washington.

GLENN: Why isn't -- why can't someone make the case here?

Why can't his people make the case? That you can't get a fair trial, with the jury pool in New York, or in Washington, DC.

ANDY: I think Trump's problem is he's too famous in some ways.

The problem is that unlike almost any other defendant, he goes and says, one of the things that they can always says about him. He's the most famous guy in the world. And no matter where you have the case, you have the same pretrial publicity problems. And they kind of reject out of hand, the thought that because a jurisdiction votes substantially against Trump as a political matter.

That means they can't be fair to him as a legal matter.

You know, you can -- you can debate that all you want. About whether that's a sensible distinction to draw or not.

But it's a distinction the courts draw.

GLENN: Okay. What do you think is come downtown pike on this?

Based on -- go ahead.

ANDY: Yeah. I think they will send the case back to Judge Chutkan with instructions to go through the indictment and figure out, what's a public act and what's a private act.

If Smith wants to fight on that, then he's never going to get to trial, prior to Election Day. Which, of course, is his aim.

Because this would still be a live immunity claim, and immunity is one of the few things that you can actually appeal pre-trial. So I don't see how he would get to trial. But I do think Smith, if he wants to. And if it's that important to him to get to trial, quickly. He could say, you know what, I will dispense with all of the acts that you say are immunized, official, presidential acts. And we will just go to the trial on the private stuff.

It would be a weaker case for him.

But it wouldn't be an unwinnable case.

GLENN: And what is the punishment?

ANDY: Well, that's an interesting question. Because that may depend on another Supreme Course case this term. The one they argued, a week before on the obstruction statute, that is key to Trump's case.

That obstruction statute has a 20-year penalty. And it's the two main counts in the indictment against Trump.

The other two counts only have five-year penalties. So if the Supreme Court says that it rejects the way the Justice Department has been using the obstruction statute. Which it might. Then that would require probably a big overhaul of Smith's case. Because those charges are very important to him.

But if the court upholds that statute. Which it also might. Then you are looking at a potential of, you know, 40 years imprisonment.

Now, he won't get 40 years. But statutorily, there would be 40 years imprisonment.

On those charges. And I think ten on the other two. The other two are fraud on the United States. And the civil rights charge.

So he would be looking at, you know, statutorily 50 years imprisonment. Which would indicate, under the sentencing guidelines, that he would get, I would think. You know, four or five, six years.

Of a sentence. If he gets convicted on those charges.

GLENN: Unbelievable. You know, last week, the Biden administration was making the case, well, Donald Trump is the on me one that has ever broken the law. That's why we've never had this before. That's such crap, and we all know it.

Why haven't we had this problem before?

ANDY: I think a lot of the criminal -- the potential prosecutable criminal conduct has come up, late in presidential terms. Like, for example, with Clinton.

The pardon scandal happened as he was going out the door. And I was in the Justice Department, at the time.

There was -- there was over a year of pretty intense debate within the Justice Department, about whether he ought to be charged with bribery or not. In connection with those pardons.

But I think there's -- maybe this has changed now.

But there's always been a current of like, when a new administration comes in. Particularly if it's a new administration of a different party. They don't want to revisit what happened, with the last guy.

They want to just go ahead, on their own stuff.

This whole idea, we're looking forward. We're not looking back. That certainly had a lot to do with why the Bush Justice Department didn't prosecute Clinton.

And I think with Obama, there was a lot of rhetoric, during the 2008 campaign, about war crimes against Bush and all that stuff.

But when they got into power. They not only weren't interested in prosecuting anyone on war crimes. They reopened the CIA investigation. But then they closed it.

But they actually ended up adopting a lot of Bush/Cheney counterterrorism.

You know, I think, there's a lot of rhetorical campaign stuff about how, you know, lock her up.

And we will put these guys in jail.

But it doesn't come to pass. I actually think Trump is serious about it, this time. Because they've seen what they've done to have.

That's why I thought it was amusing in the Supreme Court argument. For the government lawyers to get up and say, you know, you don't have to worry about this.

This is just generous with Trump, it will never happen again.

And in the meantime, Trump is ahead in the polls. And he's running as the retribution candidate. He's promised he's going to do this stuff, right?

So -- so it's an amazing time to be alive, right?

Andy, tell me about how Alvin Brag's doing, so far.

ANDY: It's a terrible case. I think -- I wrote a column about this today, called How Judge Merchan is Orchestrating Trump's Conviction.

And I was reminded of, you know, the fact that Trump when he was a young guy, learned a lot about litigation from Roy Cohen.

And, you know, what Cohen used to say, his first principle of hardball litigation was, don't tell me what the law is, tell me who the judge is.

And I think Trump knows that. He knows it very well.

And as I'm closely watching the rulings. That are being made. And the arguments that the judge is allowing to be made. It's clear, that he has allowed Bragg. And just, so the people understand, this case is indicted as a falsification of business records, that occurred in the months of February through December of 2017.

Those are the only charges in the indictment. The case is being presented to the jury, as a conspiracy from 2015 through 2017, to steal the 2016 election by violations of federal campaign finance law, which Alvin Bragg, as a state prosecutor, has no authority to enforce. And that's the way the case has been framed by the prosecutor.

Based on orders from the judge. And that is the way that they are proceeding, and judge -- and Judge Merchan is allowing the state to prove, that Michael Cohen, pled guilty to two campaign finance offenses. And that David Pecker, the AMI guy, who ran the National Enquirer. That they had a non-prosecution agreement from the Justice Department.

And then paid a fine of $180 of the Federal Election Commission.

For violating federal election law. Now, those -- it's a black letter principle of law. That one person -- let's say person A. His guilty plea is not admissible evidence against person B. Even if A says, A and B acted together.

It's absolutely improper for these -- for this evidence of what Michael Cohen and David Pecker was thinking about the federal election laws. The fact that they made deals with the government. None of that stuff should come in. The judge is letting it in.

And he's not letting Trump explain to the jury, that he, Trump, was not charged by the justice department or the FEC. And the reason is obvious.

Actually expenditures that were cognizable under the federal law.

And he's also not letting Trump call an expert witness to explain campaign lay to the jury.

So what the jury is going to hear about campaign law is going to come from Michael Cohen and David Pecker.

So it's a farce.

GLENN: How is this a fair trial?

If you can't call people -- and you can't let the -- the jury know. Truly, the other side of it?

TRENT: Yeah. Look, it's even more fundamentally unfair than that.

In the United States, under the fifth amendments of the Constitution.

You are entitled, that you will be charged with a felony.

It has to be on the basis of an indictment returned by a grand jury, that explicitly says what the charge is.

The indictment in this case, talks about false bookkeeping in 2017. A case that has been presented to the jury, is a conspiracy to violate the he federal election laws.

It's mind-boggling, that it's being permitted.

GLENN: Wow.

Andy, thank you so much.

I appreciate it.

This would definitely lose in a higher court, don't you think?

ANDY: I do. But I think it will be -- I mean, Harvey Weinstein's conviction just got reversed last week. That was three years.

Shocking train video: Passengers wait while woman bleeds out

Surveillance footage of the murder of Ukrainian refugee Iryna Zarutska in Charlotte, NC, reveals that the other passengers on the train took a long time to help her. Glenn, Stu, and Jason debate whether they were right or wrong to do so.

Transcript

Below is a rush transcript that may contain errors

GLENN: You know, I'm -- I'm torn on how I feel about the people on the train.

Because my first instinct is, they did nothing! They did nothing! Then my -- well, sit down and, you know -- you know, you're going to be judged. So be careful on judging others.

What would I have done? What would I want my wife to do in that situation?

STU: Yeah. Are those two different questions, by the way.

GLENN: Yeah, they are.

STU: I think they go far apart from each other. What would I want myself to do. I mean, it's tough to put yourself in a situation. It's very easy to watch a video on the internet and talk about your heroism. Everybody can do that very easily on Twitter. And everybody is.

You know, when you're in a vehicle that doesn't have an exit with a guy who just murdered somebody in front of you, and has a dripping blood off of a knife that's standing 10 feet away from you, 15 feet away from you.

There's probably a different standard there, that we should all kind of consider. And maybe give a little grace to what I saw at least was a woman, sitting across the -- the -- the aisle.

I think there is a difference there. But when you talk about that question. Those two questions are definitive.

You know, I know what I would want myself to do. I would hope I would act in a way that didn't completely embarrass myself afterward.

But I also think, when I'm thinking of my wife. My advice to my wife would not be to jump into the middle of that situation at all costs. She might do that anyway. She actually is a heck of a lot stronger than I am.

But she might do it anyway.

GLENN: How pathetic, but how true.

STU: Yes. But that would not be my advice to her.

GLENN: Uh-huh.

STU: Now, maybe once the guy has certainly -- is out of the area. And you don't think the moment you step into that situation. He will turn around and kill you too. Then, of course, obviously. Anything you can do to step in.

Not that there was much anyone on the train could do.

I mean, I don't think there was an outcome change, no matter what anyone on that train did.

Unfortunately.

But would I want her to step in?

Of course. If she felt she was safe, yes.

Think about, you said, your wife. Think about your daughter. Your daughter is on that train, just watching someone else getting murdered like that. Would you advise your daughter to jump into a situation like that?

That girl sitting across the aisle was somebody's daughter. I don't know, man.

JASON: I would. You know, as a dad, would I advise.

Hmm. No.

As a human being, would I hope that my daughter or my wife or that I would get up and at least comfort that woman while she's dying on the floor of a train?

Yeah.

I would hope that my daughter, my son, that I would -- and, you know, I have more confidence in my son or daughter or my wife doing something courageous more than I would.

But, you know, I think I have a more realistic picture of myself than anybody else.

And I'm not sure that -- I'm not sure what I would do in that situation. I know what I would hope I would do. But I also know what I fear I would do. But I would have hoped that I would have gotten up and at least tried to help her. You know, help her up off the floor. At least be there with her, as she's seeing her life, you know, spill out in under a minute.

And that's it other thing we have to keep in mind. This all happened so rapidly.

A minute is -- will seem like a very long period of time in that situation. But it's a very short period of time in real life.

STU: Yeah. You watch the video, Glenn. You know, I don't need the video to -- to change my -- my position on this.

But at his seem like there was a -- someone who did get there, eventually, to help, right? I saw someone seemingly trying to put pressure on her neck.

GLENN: Yeah. And tried to give her CPR.

STU: You know, no hope at that point. How long of a time period would you say that was?

Do you know off the top of your head?

GLENN: I don't know. I don't know. I know that we watched the video that I saw. I haven't seen past 30 seconds after she --

STU: Yeah.

GLENN: -- is down. And, you know, for 30 seconds nothing is happening. You know, that is -- that is not a very long period of time.

STU: Right.

GLENN: In reality.

STU: And especially, I saw the pace he was walking. He certainly can't be -- you know, he may have left the actual train car by 30 seconds to a minute. But he wasn't that far away. Like he was still in visual.

He could still turn around and look and see what's going on at that point. So certainly still a threat is my point. He has not, like, left the area. This is not that type of situation.

You know, I -- look, as you point out, I think if I could be super duper sexist for a moment here, sort of my dividing line might just be men and women.

You know, I don't know if it's that a -- you're not supposed to say that, I suppose these days. But, like, there is a difference there. If I'm a man, you know, I would be -- I would want my son to jump in on that, I suppose. I don't know if he could do anything about it. But you would expect at least a grown man to be able to go in there and do something about it. A woman, you know, I don't know.

Maybe I'm -- I hope --

GLENN: Here's the thing I -- here's the thing that I -- that causes me to say, no. You should have jumped in.

And that is, you know, you've already killed one person on the train. So you've proven that you're a killer. And anybody who would have screamed and got up and was with her, she's dying. She's dying. Get him. Get him.

Then the whole train is responsible for stopping that guy. You know. And if you don't stop him, after he's killed one person, if you're not all as members of that train, if you're not stopping him, you know, the person at the side of that girl would be the least likely to be killed. It would be the ones that are standing you up and trying to stop him from getting back to your daughter or your wife or you.

JASON: There was a -- speaking of men and women and their roles in this. There was a video circling social media yesterday. In Sweden. There was a group of officials up on a stage. And one of the main. I think it was health official woman collapses on stage. Completely passes out.

All the men kind of look away. Or I don't know if they're looking away. Or pretending that they didn't know what was going on. There was another woman standing directly behind the woman passed out.

Immediately springs into action. Jumps on top. Grabs her pant leg. Grabs her shoulder. Spins her over and starts providing care.

What did she have that the other guys did not? Or women?

She was a sheepdog. There is a -- this is my issue. And I completely agree with Stu. I completely agree with you. There's some people that do not respond this way. My issue is the proportion of sheepdogs versus people that don't really know how to act. That is diminishing in western society. And American society.

We see it all the time in these critical actions. I mean, circumstances.

There are men and women, and it's actually a meme. That fantasize about hoards of people coming to attack their home and family. And they sit there and say, I've got it. You guys go. I'm staying behind, while I smoke my cigarette and wait for the hoards to come, because I will sacrifice myself. There are men and women that fantasize of block my highway. Go ahead. Block my highway. I'm going to do something about it. They fantasize about someone holding up -- not a liquor store. A convenience store or something. Because they will step in and do something. My issue now is that proportion of sheepdogs in society is disappearing. Just on statistical fact, there should be one within that train car, and there were none.

STU: Yeah. I mean --

JASON: They did not respond.

STU: We see what happens when they do, with Daniel Penny. Our society tries to vilify them and crush their existence. Now, there weren't that many people on that train. Right?

At least on that car. At least it's limited. I only saw three or four people there, there may have been more. I agree with you, though. Like, you see what happens when we actually do have a really recent example of someone doing exactly what Jason wants and what I would want a guy to do. Especially a marine to step up and stop this from happening. And the man was dragged by our legal system to a position where he nearly had to spend the rest of his life in prison.

I mean, I -- it's insanity. Thankfully, they came to their senses on that one.

GLENN: Well, the difference between that one and this one though is that the guy was threatening. This one, he killed somebody.

STU: Yeah. Right. Well, but -- I think -- but it's the opposite way. The debate with Penny, was should he have recognize that had this person might have just been crazy and not done anything?

Maybe. He hadn't actually acted yet. He was just saying things.

GLENN: Yeah. Well --

STU: He didn't wind up stabbing someone. This is a situation where these people have already seen what this man will do to you, even when you don't do anything to try to stop him. So if this woman, who is, again, looks to be an average American woman.

Across the aisle. Steps in and tries to do something. This guy could easily turn around and just make another pile of dead bodies next to the one that already exists.

And, you know, whether that is an optimal solution for our society, I don't know that that's helpful.

In that situation.

THE GLENN BECK PODCAST

Max Lucado on Overcoming Grief in Dark Times | The Glenn Beck Podcast | Ep 266

Disclaimer: This episode was filmed prior to the assassination of Charlie Kirk. But Glenn believes Max's message is needed now more than ever.
The political world is divided, constantly at war with itself. In many ways, our own lives are not much different. Why do we constantly focus on the negative? Why are we in pain? Where is God amid our anxiety and fear? Why can’t we ever seem to change? Pastor Max Lucado has found the solution: Stop thinking like that! It may seem easier said than done, but Max joins Glenn Beck to unpack the three tools he describes in his new book, “Tame Your Thoughts,” that make it easy for us to reset the way we think back to God’s factory settings. In this much-needed conversation, Max and Glenn tackle everything from feeling doubt as a parent to facing unfair hardships to ... UFOs?! Plus, Max shares what he recently got tattooed on his arm.

THE GLENN BECK PODCAST

Are Demonic Forces to Blame for Charlie Kirk, Minnesota & Charlotte Killings?

This week has seen some of the most heinous actions in recent memory. Glenn has been discussing the growth of evil in our society, and with the assassination of civil rights leader Charlie Kirk, the recent transgender shooter who took the lives of two children at a Catholic school, and the murder of Ukrainian refugee Iryna Zarutska, how can we make sense of all this evil? On today's Friday Exclusive, Glenn speaks with BlazeTV host of "Strange Encounters" Rick Burgess to discuss the demon-possessed transgender shooter and the horrific assassination of Charlie Kirk. Rick breaks down the reality of demon possession and how individuals wind up possessed. Rick and Glenn also discuss the dangers of the grotesque things we see online and in movies, TV shows, and video games on a daily basis. Rick warns that when we allow our minds to be altered by substances like drugs or alcohol, it opens a door for the enemy to take control. A supernatural war is waging in our society, and it’s a Christian’s job to fight this war. Glenn and Rick remind Christians of what their first citizenship is.