Former assistant U.S. attorney and Fox News contributor Andy McCarthy explained the crux of the Trump indictment Friday.
Former President Donald Trump announced Thursday he was being indicted, with the official indictment being unsealed Friday. The charges against Trump include 31 counts of alleged violation of the Espionage Act or the willful retention of national security information, as well as one count of “conspiracy to obstruct justice,” one count of “withholding a document or record,” one count of corruptly concealing a document or record,” one count of “concealing a document in a deferral investigation,” one count of “scheme to conceal” and one count of “false statements and representations.”
Fox News’ John Roberts asked McCarthy for his initial reaction.
“On the surface, how are you struck by what we’re hearing?”
“I have been saying all along I thought the obstruction was going to be the Big Kahuna here in the sense that what we understood about the facts was that they had issued former President Trump a grand jury subpoena and they had caused, or he had caused, according to the theory, his lawyers to give false information to the FBI to be transmitted to the grand jury about whether he had turned over all the stuff in his possession,” McCarthy said.
“What I’m struck by reading the indictment now, first of all, it’s very detailed, it’s a narrative indictment, it’s not a bare bones thing where they’re just talking about the statutory offenses. And the first almost three dozen counts in this indictment are related specifically to classified documents. That is, you know, to the extent that we were led to believe that there might be one or two classified documents counts, in fact there are over 30, and what they’ve done, I think, is taken the most sensitive of the documents and charged them as separate counts.”
Host Sandra Smith noted that in 2021, according to the indictment, Trump allegedly showed several people at his golf club in Bedminster, New Jersey, a plan of attack that was reportedly prepared for him by the Department of Defense. Trump told the individuals the material was secret, and though he could have declassified it while in office, he technically could not declassify it since he was out of office, the indictment alleges.
McCarthy said there was both a political and legal claim.
“On the legal side, this shows intent and knowledge on his part that he had documents that were classified that he wasn’t allowed or able to, or legally able to communicate that to people who didn’t have classification clearances, and the fact that he’s handling the documents the way that he handled them with that knowledge is going to be very good for the prosecutors in terms of proving what they have to prove for the trial,” McCarthy explained. (RELATED: ‘What Are You Talking About’: Stephanopoulos Melts Down After Former Trump Attorney Points Out Biden Had Declassified Docs)
“On the political plain, I’ve personally never been blown away by his claim, which his lawyers won’t repeat in court, and which there’s no documentary evidence of that he declassified everything. Because declassification, even if he did it, let’s assume for argument sake that he did, even though there’s no real evidence of it, it wouldn’t be a defense in an Espionage Act case because the Espionage Act doesn’t speak about classified information — it speaks about national defense information. So even if he declassified everything, if he’s mishandling national defense information, it wouldn’t matter that he had declassified it. And of course with respect to obstruction, they gave him a subpoena.”
“So since he would have had to turn over the documents if they had classification markings no matter what, it doesn’t matter, again, whether he declassified them or not,” he added.
Roberts then asked whether the “crux” of the case is the alleged obstruction.
“I think it is,” McCarthy said. “One of the things that former President Trump, I think, wants to argue and he’ll want to argue it to the jury just like he wants to argue it to the public, is that he’s being singled out here, that this is selective prosecution. That you know, Hillary Clinton got a pass, Biden got a pass or is gonna get a pass, Pence got a pass, but they’ve singled him out to prosecute him, and I think what the government is going to want to come back to that and say is that anybody in America who provided a false statement to the grand jury under oath would be prosecuted, but that’s not a selective prosecution.”
“That’s the kind of thing people can easily wrap their brains around that you know, you are not allowed to do that, and that they could imagine themselves being prosecuted for that kind of conduct. The other political aspect of that is the Democrats, including the Biden Justice Department, want to distinguish Trump’s situation from Biden’s situation, and the obstruction conduct is what allows them to do that. Because what Biden will say is, ‘I was completely cooperative with the investigators, I let them — I consented to searches of my home.'”
“Whereas by contrast, they are going to show Trump fought them every step of the way and tried to hide stuff from them,” he concluded.
Trump is expected to be arraigned in Miami on Tuesday.