Andy McCarthy: Special counsel investigation of Trump is politically-fraught - unavoidably
Former federal prosecutor weighs in on a special counsel looking into Trump on 'The Story.'
Former President Donald Trump will probably be indicted in relation to the Mar-a-Lago documents case now being undertaken by Special Counsel Jack Smith, an ex-New York federal prosecutor told Fox News on Monday.
If Trump is indicted, it is likely such an announcement will come at a time best suited for Democrats to score a political win before the 2024 presidential election, former SDNY Assistant U.S. attorney Andrew McCarthy said.
McCarthy however advised Smith's special counsel probe is "politically fraught; unavoidably" and that it appears the Biden Justice Department has conceded Trump had no direct role in the violence that occurred on January 6, 2021.
The Smith probe rhetorically is "a lot of theater" intending to suggest Attorney General Merrick Garland is pushing off direct oversight of an investigation into a former – and potentially future – president, McCarthy said, pointing to the fact the special counsel himself must report to Garland hierarchically anyway.
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FILE - In this Thursday, Dec. 31, 2020, file photo, President Donald Trump arrives on the South Lawn of the White House, in Washington. (AP Photo/Evan Vucci, File)
"It's not really off his plate, though, is it… As a matter of constitutional law and the special counsel regulations, the special counsel reports to Garland and Garland reports to Biden, and there's nothing they can do about that," he said.
"It's a politically fraught investigation; unavoidably, and their fingerprints are going to be all over it no matter what happens."
While some Americans may be convinced there is some "detachment" between Joe Biden and Smith, in the end, the now-former Kosovo War crimes prosecutor's credibility will come down to whether the evidence he brings forth is strong on the merits alone.
"If they bring a RussiaGate type case that looks like it's just a big hoax, that's going to look like an abuse of power. If they bring a serious case that has serious evidence of crimes, you know it's going to have credibility," McCarthy said.
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Jack Smith was appointed to be special counsel looking into two major Trump investigations. (Justice Department)
While McCarthy suggested Trump will face less onus in connection to the riot violence, he appeared to agree with the Republican's former attorney general, William Barr, that an indictment is very likely in connection to the raid on his Palm Beach, Fla., estate.
"I do expect that Trump will be indicted. I think it will happen at a time that's propitious for the Democrats in terms of the politics of 2024," he said. "But I think they probably think that they have the documents case in the bag already."
Trump's Mar-a-Lago estate was raided by the FBI earlier this year, with authorities claiming the former president wrongfully took sensitive and/or classified documents with him when he left presidential office.
For his part, Trump has denied any wrongdoing, pointing to cases involving former President Bill Clinton and others.
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Andy McCarthy (Fox)
In Clinton's case, an Obama-appointed rejected Judicial Watch's arguments for access to presidential tape-recordings the Arkansas Democrat purportedly kept in his sock drawer.
At a political rally earlier this year, Trump brought up the Clinton socks case, as well as a claim "millions" of George H.W. Bush presidential documents were housed for a time in a "former bowling alley pieced together with what was then an old and broken Chinese restaurant."
Bush's son, former Florida Republican Gov. Jeb Bush, rejected the latter assertion, proffering Trump the southern vernacular "Bless His Heart" – and explaining the National Archives has a history of using unaffiliated facilities for warehousing presidential paraphernalia in the short-term; however under more security and supervision than Trump had suggested.
"My dad didn't go to the bowling alley and didn't go to the Chinese restaurant to look at millions of papers and pick which ones he wanted," Bush told Fox News last month.
Trump recently slammed Smith as a "super radical-left special counsel" – adding he thought the Mar-a-Lago "document hoax" was "dying, dead or over," according to remarks captured by the U.K. Independent.