CLAY: We are joined now by Andy McCarthy, National Review now. He’s also a Fox News contributor. He spent over 20 years as an assistant U.S. attorney for the Southern District of New York prosecuting many major cases. And he’s been on this show before. You guys have responded to him very favorably because he can make very complex issues understandable for all of us, as all good trial attorneys are required to do. And so, we appreciate the time, Andy.
I want to start with the big question here for you, broad question, I should say. This warrant request, how unprecedented is it for a warrant request to have been made on behalf of a former president involving his private residence and also a future potential political candidate for president? And how involved do you think FBI director Christopher Wray and Attorney General Merrick Garland would have been in the decision to pursue a warrant like this?
MCCARTHY: Well, Clay, it’s clearly unprecedented. No former president of the United States has ever been indicted by the Justice Department. At least one or two have been investigated, but I’m unaware of any search warrants being executed. Search warrant is the most intrusive manner in which, as we call them, investigative techniques that the Justice Department uses to get evidence. And in a nonviolent crime where you’re dealing with people who are represented by counsel, and the government has been negotiating with them apparently about this matter — you know, the Presidential Records Act and potential classified information, these conversations having ongoing between Trump and the National Archives and other elements of the government for months.
Ordinarily, you would just, if you wanted to incorporate some of that in a criminal investigation, you would give them a search warrant, a grand jury subpoena and you’d give it to the lawyers and tell them, this is the stuff that we want you to surrender. So, to do it by search warrant is not only unprecedented in these circumstances, I think it really raises a lot of questions about why you go to DEFCON 5, you know, in step one.
That obviously is troubling for people. And, you know, look. When I was in the U.S. attorney’s office in New York — I don’t want to pretend that the sovereign district of New York is the be-all and end all of everything — but I wouldn’t dare do an investigation even in a case that had minor political implications without running it past the chain of command in the office, including the U.S. attorney. The last thing I’d want is my boss to read about that in the paper.
And that was, you know, people wanted to be informed. It wasn’t a question of, like, as it is in Washington sometimes with a hide under their desk if they find out information, they’re expected to do something about it, which is the last thing they want to be accountable for. So, New York’s a different place than Washington, I understand. But I can’t imagine that this was done without a green light from the highest echelon of the Justice Department.
Whether Wray personally would be involved, I would assume that if it was a top level of the DOJ, it would be a top level of the FBI, but I always maybe, because of my experience, I always think the Justice Department is the laboring oar in a search warrant situation. Whenever you have to go to the court for evidence, it doesn’t happen unless — even if the FBI really, really wants it, it doesn’t happen unless the Justice Department green lights it.
BUCK: Andy, it’s Buck. On that search warrant issue, how does this work? Does Trump get access to the search warrant and his legal team, or they only get a partial or perhaps redacted version of it? Could Trump make it public?
MCCARTHY: So, here’s what happens, Buck. Under the rule, the search warrant basically has two parts. There’s the search warrant form that basically says a court has ordered the search warrant, the judge has signed off on it, basically says what the agents are allowed to look for. But it does not set forth the probable cause for a search warrant. That’s done in an affidavit that’s sworn to by an FBI agent but typically written by an assistant U.S. attorney or some Justice Department prosecutor.
That remains under seal with the court. And what the Justice Department’s position typically is about this — and this is a sensible position — is that if you have an ongoing investigation, you can’t publicize the basis for exercising a particular investigative technique because that would tip off other people who are —
BUCK: So, Andy, can I ask you because I think this is important, does that, then, mean that there is the possibility that we will actually never know the full… If they don’t bring an actual indictment against Trump, we may never actually know what the full basis was for this warrant. Is that fair?
MCCARTHY: I don’t think so, Buck, because — for two reasons. I think, you know, number one, if what they found is at all relevant to any criminal case that they eventually bring — and it doesn’t have to be a case against Trump, by the way. Could be a case against somebody else that they bring. If it’s relevant, then they have to disclose it to the defense in discovery. So, this is not like a FISA situation where everything’s classified and under wraps. So, the avenue that would be most common for this ultimately being revealed is the Justice Department doesn’t bring these warrants for no reason normally, right? They are trying to build a case. Once they do build one, then it gets turned over to the defendant discovery and that’s how we find out what’s in it.
BUCK: Right. But what I’m saying, Andy, if they don’t actually indict Trump or anyone else, we may never know.
MCCARTHY: Well, but then you have Freedom of Information Act —
BUCK: Okay.
MCCARTHY: — availability because it’s a criminal issue, not a national security issue. Now, I can’t say that the Justice Department won’t come in and say, you know, there’s super-secret national security information here and we can’t reveal it, you know, then they try to fight it. But you generally have more avenue to obtain information when it’s a criminal prosecution as opposed to a FISA national security matter.
CLAY: We’re talking to Andy McCarthy. He was the assistant U.S. attorney for the Southern District of New York for over 20 years walking through many of the details surrounding this. Andy, predawn raid, basically — and I know they’re disputing whether the phrase “raid” can be used. If you were setting odds based on your experience, how often would an FBI warrant raid such as this lead to charges? And then I have a quick follow-up; so, if you’ll remember this, how many judges could you go to in order to get a warrant, and how many judges do you think they may have gone to, and how do they select who to go to?
So, maybe let’s start with the judge question and then go back to the likelihood of charges based on FBI warranty know warrant being granted. So, in your experience, how often is there forum shopping, so to speak, where you’re going to a judge that you think is most likely to grant you, how many judges could you go to in order to get a warrant such as this?
MCCARTHY: There are different rules in different districts, Clay, but basically the way it works in the Southern District of New York and I think most people — most places work the same way, you know what judge is going to be on what they call emergency or miscellaneous duty in New York, it was like for a two-week period. So, one judge would be assigned to what they called part 1, which was for all the emergency applications, including wiretaps and search warrants and all that stuff. You would know ahead of time which judge was gonna have duty those two weeks —
CLAY: And you would know, then, as the DA, like, which ones are more likely to be preferable to go in front of, right, like which ones are more lenient to you in granting those warrants?
MCCARTHY: Oh, yeah, because those same judges also hear guilty pleas. So, it used to be, you know, if you had a cooperating defendant, you would want to make sure that you got him in front of, you know, one set of judges rather than a different set of judges, right? So, yes, that does go on. On the other hand, if you’re dealing with the… Very often you’re dealing… This doesn’t sound like that situation, but you’re dealing with exigencies in investigations, and you have to play the hand you’re dealt, you know, who’s ever on —
CLAY: You have to go immediately no matter what. All right. And then the second part of that —
MCCARTHY: And you do have to disclose — you do have to disclose — if you go to a judge and he tells you no, you can’t go to the next judge and not tell him that, you know, the last judge told you no.
CLAY: Okay, Andy. And then the other question here, in your experience when the FBI conducts a raid like this, how often do criminal charges come? And do you think, based on what we saw happen yesterday, that there is an intent to bring charges?
MCCARTHY: Well, I want to say generally speaking — I’m tempted to say in excess of 90% of cases that we go through the paces of getting a search warrant, you have criminal charges. Now, I think political cases can be a little bit different. But you have to remember that to get a search warrant, you have to show the court that you have probable cause that a crime got committed. So, if you aren’t convinced that a crime was committed, you wouldn’t be getting a warrant in the first place.
And if you found… You know, what you’re telling the court when you get a warrant is not only probable cause that a crime was committed but the evidence of the crime will be found in the place that you’re searching. So, if you’re right about that, the search confirms your suspicions and your case is even stronger. So, a lot of the time you arrest people and execute search warrants at the same time because it’s basically, you know, mostly the same evidence.
BUCK: Andy, we gotta go but I gotta ask you this. I’ve known you a long time and you’re overwhelmingly spot-on with this stuff. Does your gut tell you there’s already a sealed indictment against President Trump right now?
MCCARTHY: No. I don’t think so. I think they’re building a case on January 6th. I don’t think they care about classified information or the Presidential Records Act. I think they’re trying to build a January 6 case and that this is mainly pretextual.
BUCK: All right, thank you so much. Andy McCarthy, everybody. Appreciate you, Andy.