Tainted “Meat And Potatoes”—Andrew McCarthy On Political Trials, Public Tribulations

>> Donald Trump: It's a witch hunt, it's just a continuation of a witch hunt. They wanna silence you, and they mean silence cuz I have four of them now. If you look, I mean, this is not even possible, four over the next last couple of months.

>> Bill Whalen: It's Tuesday, August 22, 2023, and welcome back to GoodFellows, a Hoover Institution broadcast examining social, economic, political, and geopolitical concerns.

I'm Bill Whelan, I'm a Hoover distinguished policy fellow. I'll be your moderator today. Happy report that. We have our full complement of GoodFellows with us today. That includes the historian Neil Ferguson, the economist John Cochran, from an undisclosed location somewhere deep in the heart of Texas, and of course, our resident eternal optimist, Lieutenant General HR McMaster.

They are Hoover Institution senior fellows all. And joining us today for a conversation about the law and the 2024 election is Andy McCarthy. Andy is a senior fellow at the National Review Institute, a national review contributing editor, and author of the book Ball of Collusion, the plot to rig an election to destroy a presidency.

Eddie McCarthy also once served as an assistant US attorney for the Southern District of New York, which makes him the ideal guest to discuss the collision of America's political and legal systems. How justice is being applied in the campaign season, how this affects both the 2024 election and America's global reputation.

Andy McCarthy, welcome to GoodFellows.

>> Andrew McCarthy: This is such a treat, Bill. Thank you so much. I'm a huge fan, and there are some episodes I can only listen to once, but I get to them at least once, so it's great to be here.

>> Bill Whalen: Well, the feelings mutual, my friend.

We're all big admirers to your writing, there's a lot to get into, and know we wanna talk about the specifics in the Trump trial. We wanna talk about the ongoing investigation. And Mister Biden, I know you have strong sentiments about the special counsel. But first, I'd like to pose a big question to you, Andy, which is something along the lines of this.

If one of these trials with Donald Trump begins next March, let's say, that is peak primary system, the peak primary time in America, that would seem very unfair to candidate Trump. I would also argue, Andy, maybe even even more unfair to the men and women running against him.

Good luck getting the attention, if the cameras are all following Donald Trump into a courtroom. On the other side of the aisle, there's a question about how vigorous the investigation will be into the president's son. Slow walking, this has been an MO of this so far. If it is so walked through 2024, Republicans will cry cover up.

On the other hand, if the special counsel pulls a Comey and does something in October before the election, announces he's reopening an investigation, Democrats will cry, fella. So here's the question, Andy, is what we're looking at right now, is this a set of circumstances unique to the relative failings of Donald Trump and Joe Biden, or is there a bigger problem here?

And I ask, this is a very loaded question, because I asked this as a very lowly campaign aide working for George HW Bush in 1992. When four days before the election, Lawrence Walsh, the special counsel in his six year the Iran Contra investigation and died at Cap Weinberger four days before the election.

So Andy, your thoughts?

>> Andrew McCarthy: Well, I do think you're seeing a couple of features of the American system that have changed a great deal over time, particularly the infusion of politics at the state level as a feature of the criminal justice system. In the federal system, we appoint prosecutors in most of the states their elected positions.

And I think what you're seeing here is a dynamic where it's actually good politics for the democratic prosecutors in big cities like New York, Atlanta, to indict Trump regardless of whether they actually get him convicted or not. The politics locally for them not only breaks well, but it's not necessarily the same politics as it is on the national level and what the Biden administration is dealing with.

So you have this strange crash in the system between the local politics and what I think the Justice Department would like to accomplish at the national level. And then there's another layer to it that I think hasn't gotten enough attention, which may go exactly to what you're talking about in terms of whether Trump can get a fair trial.

When I did mafia cases for a long time, where we had people in custody, but the defense lawyers would demand to have a year or more to prepare for trial. Because there was simply too much discovery and the cases were too complex, particularly when they were multi defendant cases.

And the same thing was true of terrorism cases. We would have people in custody for a year and a half or more, and yet they would insist on an extensive period of time to get prepared for trial. Here Trump is being rushed to trial in not one, but four criminal cases, at least if the prosecutors have their druthers.

And then, Bill, I think that there's a layer of civil litigation that hasn't gotten enough attention, but that could be very damaging to Trump as we've already seen this year in connection with the case he had involving Eugene Carroll, the journalist. Beyond the four criminal cases, Trump has a major civil fraud trial brought by New York state Attorney General Letitia James that begins trial on October 3rd.

You wanna talk about the commencement of the primaries and the lead up to the commencement of the debates and the lead up to the primaries. That case could go a number of weeks. This is the case that the New York prosecutors tried to make for years, going up to the Supreme Court a couple of times to get his financial records.

The prosecutors passed it up, but the AG brought it as a civil case. Then on January 15th, we have Eugene Carroll, part two. Because Trump being Trump, as soon as he was found guilty or found liable in the first civil trial, he went out and basically repeated the defamation that he had just been found guilty of, and she promptly sued him again.

So that case is going to trial on January 15th. And then on the 29th, also a federal case in the Southern District of New York, my old haunts in Manhattan, a two to four week trial on a civil fraud scheme, what's alleged to be a pyramid scheme. So the thing with these civil cases is, unlike the criminal cases, where the government is coming at you, in the civil case, you're actually expected to participate.

And if you don't, the wages of that are very bad. So we saw in the Eugene Carroll case, Trump didn't participate, didn't show up, didn't testify. In a civil case, unlike the criminal case, the judge will instruct the jury that if you don't testify, you can construe that against the defendant, that if he had an innocent explanation, he would have given it to you.

He's got a lot to lose in the October trial, where they're basically trying to put his organization out of business. And then you have these other two cases as well. So I think before you even get to the criminal prosecutions, which I don't see, starting before the spring.

He's already going to have a great deal of litigation, a lot to prepare for, probably a lot of testimony, perhaps a couple of big losses, where if he loses these cases, they're financially harmful to him. But I also think the political implications of them are more than or apt to be more than we've factored in.

So he's under a big burden.

>> Niall Ferguson: Andy, I have a question. Is it sort of political death by 1000 counts, or 91 to be precise, or does this guarantee that Trump gets the nomination because he's in the news seven days a week from here on until election day?

I can't really figure that out. On the one side, it clearly is gonna cost him time and money, a lot of money. On the other hand, it's airtime, its publicity on a scale that he didn't have in 2016. How do you see this in terms of its net costs and benefits?

 

>> Andrew McCarthy: I think it gets him. The bottom line, Niall, is I think it gets him the nomination and then he gets killed in the general election. And the reason I say that is there's a dynamic, especially the criminal litigation process, which is working to Trump's benefit and actually to the benefit of the Democrats, who I think want to run against Trump in November.

The way this works, the charges come out in these indictments, and I think they've had the effect of not only ginning up Trump's political base, which is probably a third or more of the republican base, and it's very solid for him. But the other problem is what you allude to, which is it's not only free publicity for him, the other GOP candidates can't get any traction with the voters.

They're constantly asked about Trump. Right at the moment, they're trying to introduce themselves to the country. Trump's troubles are blowing up, and they don't get to really make their own personal connection to the point that I think Trump is now choreographing this. So, for example, tomorrow we have the first big debate.

Trump decided he could have picked any day in the last two weeks. He's decided to surrender and be processed in Atlanta on Thursday, which will step on anyone's momentum coming out of Wednesday night. So there is a way of gaming this. But I think that he's a prohibitive favorite right now to get the nomination.

This plays into his hands. But the thing is, the way this works, within, I'd say about eight months, at least one of these cases will go to trial, maybe more. And the trials and the hearings is where all the bad stuff comes out. Where all the evidence comes out, the very damaging documents, the compelling testimony.

And the audience at that point is not the Republican electorate, it's the broader general electorate. Where at his high watermark, he never did better than 46. And that's before the Capitol riot and before all the stuff that happened post 2020 election. So that information is going to come out, and I think they're just gonna kill them.

I don't think people have any idea how bad this will be about a year from now.

>> John Cochrane: So that means I'm interested to hear. That means you think there is something in here that will resonate with middle America beyond sort of conspiracy to mishandle documents. But the deeper question I'd like you to go after.

I'm troubled. I don't think this is just the particular personality of Donald J Trump, which, once he's gone, we're back to Kumbaya. There's an increasing involvement of the justice system in politics and presidential politics, especially in just in recent history. We can go back to Comey and Hillary's laptop and then not Hillary's laptop and then Hillary's laptop again.

The Mueller probe, the Russia hoax, censorship of the Internet is part of it. District attorney, sorry. Various federal judges issuing nationwide injunctions on policies they don't like. Presidential politics is more and more done with the involvement of the justice system. It's pretty clear both of these guys need to win the election to stay out of jail.

We'll get to those in a minute. And that's very dangerous. In Pakistan, you lose an election and there will be conspiracy to defame the profit or something of the sort, and you go straight to jail, and your family loses their business, and they go after you. The result is you do everything in your power not to lose elections.

So I'm very troubled, and I hope you'll comment on this by the increasing involvement. Not just at the prosecution level, but the whole operation of the Department of Justice level, and seen as increasingly an arm of presidential politics.

>> Andrew McCarthy: Well, I think it's been catastrophic for the country.

This will be the third straight cycle where we've had the Justice Department deeply involved in presidential politics, in electoral politics. It's had, to my mind, the worst consequence of it has been to national security, and that's not one that's real easy to see. But I think right now, if you were to have a vote in Congress on whether to reauthorize FISA, you might lose.

In fact, I think there's a very good chance you would lose. And the reason for it is that there's a perception, especially on the. Not just on the Trump right, I think more broadly on the center right. That those powers, these national security powers, can't be, the people who are authorized to wield them can't be trusted anymore, right?

And as a result, we could have the consequence of making the country much more difficult to defend. I always felt after having spent a number of years doing kind of conventional criminal law cases, that in doing terrorism cases, it really hammers you over the head. That's the one area of our law where the government really has to be able to look you in the eye and say, you can trust us with these powers.

Because if you can't maintain secrecy and you can't maintain the security of methods and sources of intelligence, we simply can't protect the country. So I think the worst thing about the Russiagate fiasco, I mean, it's terrible what happened to Trump. And obviously his government was hamstrung for a couple of years.

But I think for the country, the worst thing was that of all the powers the FBI could have used or abused in order to carry out that scheme. They chose the national security powers, which not only are the worst thing to abuse, but they actually have to be reauthorized periodically.

So I would not be surprised if at the end of this year, you're going to see a stripping back of some of those authorities. And that's terrible for the country because it's not like we give these powers to the FBI because we think they're great guys and they're honorable.

We hope we get that. But we give those powers because we need to protect the United States. And if we decide that the people wielding them can't be trusted with the powers, that doesn't make the threats to us any less profound. It just makes it more difficult for us to protect against them.

As far as your broader question, John, I'm an adherent to Bill Barr's dictum that if the Justice Department is going to intrude itself into electoral politics, it ought to be over what he called a meat and potatoes crime. That is to say, something that's a real serious offense that you can prove by compelling evidence.

And then I think that the public generally thinks anybody would be prosecuted for something that's serious. Now, you could say that imposing a standard like that effectively puts people above the law. I don't believe that's true, I think that in every case you have exercises of prosecutorial discretion.

And there's all kinds of reasons that prosecutors don't bring cases. Many of them are a lot less important than whether we've insulated our electoral system from the possibility that the incumbent government will put its thumb on the scale. And use the intelligence and law enforcement apparatus of the government against its political enemies.

I think it's really important to the country, and we're losing this. It's really important to the country that that is a norm, that that's protected, that we don't do that in this country. And I think more and more people are convinced that we precisely do that in this country.

I think it's been a very bad development. The problem that Barr, I think the problem with Barr trying to implement what he preached, is that you can't have unilateral disarmament. Politically speaking, you can't have one side that says we're not going to do this, and then expect that the constituencies of that side are going to be satisfied when the other party gets in power and they immediately start to do it again.

And we see suppression on social media, these prosecutions throughout the country. And the prosecutions in this case that you referred to run the gamut, I think, from the very serious, which to me would be not only the Mar-a-Lago documents. But what that really is about, which is obstruction of the grand jury, which anyone in America would be prosecuted for, for flouting a grand jury subpoena.

And then on the other side, you have this ridiculous case that's been brought by the Manhattan district attorney, who won't prosecute actual criminals in Manhattan. Where the streets have gotten considerably less safe in the last ten years.

>> John Cochrane: There's a lot of republican city district attorneys ready to go, [INAUDIB LE] Biden's, anyway, it's HR's turn.

 

>> Andrew McCarthy: Yeah, sorry.

>> H.R. McMaster: Well, no, hey, Andy, this is really clarifying a lot for me. I mean, I think there are really two areas we're talking about. One is really lack of confidence that the judicial and our legal system will stay out of politics. And then the other are concerns about citizens privacy, and this is the 702 provision of the FISA Act.

And of course, we have a crisis in both these areas, I mean, I'll tell you, when I was national security advisor. I mean, getting the president to sign reauthorize 702 was not an easy thing to do even back then. Now it's even worse, I would like your thoughts on how warranted do you think the concerns are over infringements on privacy and also intervention in politics.

And what you think the path might be back, at Hoover, we have this new center that's been established on American institutions and trying to strengthen them. What do you see as the path back to regain confidence in our judicial branch? The legal process, due process of law in these two areas of privacy and in politics?

 

>> Andrew McCarthy: HR, this is gonna be counterintuitive, but I've never been a fan of FISA. And I think the closer you get to it, the more you see that structurally it can't work. And the reason is, I think foreign intelligence collection is innately an executive responsibility and a political responsibility.

The court was brought into it essentially because of the spy scandals of the Watergate era and COINTELPRO in the seventies. And I don't think it was a good idea. Justice Jackson, in the 1950s, Jackson, who had been like an iconic figure not only in the executive branch, but the judiciary, as a member of the Supreme Court, writes a decision in the 1950s.

That basically says, the judiciary has no place getting involved in intelligence collection, because there's nothing about being a lawyer, even a really smart lawyer, that gives you particular expertise in that area. So it's out of their ken, they've tried to address that by having one specialized court that hears all the cases.

So the idea is that if you husband that all in one place, that they'll develop that expertise. But the second thing Jackson said, I don't think there's ever been an answer for, which is that in a free republic, the most important decisions made by the body politic are about their security.

And that those decisions need to be made by people who answer to the people whose lives are at stake. And when you divert those to the judiciary, not only are they not being made by people who answer to the public, the judiciary being the branch that we intentionally insulate from politics.

But what you get, and I've seen this in terrorism litigation, what you get is a ratcheting up of due process for people who wanna mass murder Americans, but the country is not made safer by the process. And I think the other thing we've now seen in connection with Russiagate is that the court is not institutionally competent to do with what it's being asked to do.

Which is to oversee the FBI in carrying out FISA on the domestic level. They're not equipped. If the bureau brings them a surveillance application, they are not in a position to do an investigation of whether the bureau is levelling with them or not.

>> H.R. McMaster: So, Andy, what's the solution then?

What I'm thinking is you're arguing maybe to some extent, for giving the executive branch, those authorities without having to go to the court to be able to. For example, understand what the nexus is between a person of interest abroad who might be a threat to the United States and US citizen.

Because there isn't really, I don't have much confidence in the executive branch not overreaching, because that's where the problem was. Right. With the unmasking requests, which, by the way, I was national security advisor for 13 months, never submitted one unmasking request. So I think there was really an issue with that in the previous administration.

So how do you give the executive branch the authority it needs while protecting individual rights and rights to privacy without the courts?

>> Andrew McCarthy: Yeah, so what I would do is two things. I am the last person on the planet saying that they don't need oversight. I think the problem is the oversight they have is ineffective, so we have to figure out a way to make it effective.

I think that can only be done by Congress and that they have to stand up a robust oversight capacity over intelligence collection. I would get the court out of it. And then the other thing, which does me no pleasure to say, because Because I used to be rabidly on the other end of this position, but I would take away the FBI's national security mission, the foreign counterintelligence mission, and give it to a separate intelligence agency that doesn't have police authority.

So I used to argue in the heyday of our counterterrorism in the 90s, that it was more efficient to do it our way than the way the Brits did it, where they had separate organizations. I used to think that having both the law enforcement mission and the foreign counterintelligence mission under the same roof at the FBI would allow them more efficiently to leverage each other.

And given that the immediate threat to the country was jihadist terrorism, that seemed to me to be prudent. I think we've now seen what I said could never happen has happened, which is that they have abused their. The bureau has abused its foreign counterintelligence authority to maintain a case when they didn't have a basis to conduct a criminal investigation.

Which was the whole reason, hypothetically, that was why the Clinton Justice Department put the wall in, back in the 90s over this fear that the surveillance, the foreign counterintelligence side, would drive criminal investigations when you didn't have criminal evidence. I always thought it was absurd to think that would happen, because you had to go through so many hoops to get FISA authorization that it would be more rational for a rogue agent to make up a basis to do a criminal investigation than try to make up a national security angle to go through FISA.

But I think obviously, in the Russiagate thing, that's exactly what they did. And maybe that's because headquarters took over the investigation. So when headquarters decides to break the rules, there's no one there to tell them no. But whatever the reason is, it obviously didn't work. So I take away their mission and give it to an actual intelligence agency with no police authority.

 

>> Niall Ferguson: Andy, can I jump in? It's always music to my ears when an American admits that the Brits do something better. But I want to bring us back to your earlier point about the political consequences of the lawfare against Trump. Let me push back a bit. I think the key voters are a relatively small number of independent voters in a relatively small number of counties, in a relatively small number of states.

And I think those voters will look increasingly skeptically at Joe Biden the more they learn about the antics of his son Hunter, and the president's involvement in those. Are there meat and potatoes involved here? To go back to your meat and potatoes analogy, that's what I can't quite figure out.

And what's the significance of the appointment of David Weiss as special prosecutor in the investigation of Hunter Biden? Am I right in suspecting that this smells bad and that the smell is going to reach the nostrils of those key voters and some of them will start to say, you know, say what you like about Trump.

Joe's no better. Amtrak, Joe's know better. There's just sleaze on both sides. So maybe we should stop holding it against Trump. Am I right in thinking that that could happen?

>> John Cochrane: And I'd like to add to Neil's questions before he answer, because there's a bunch of issues involving this in both cases, I'll give you my view.

Trump is not obviously guilty of something criminal. He's guilty of violating his oath of office to defend the constitution. And that's not a criminal act. We're trying to manufacture some criminal act. That's an act that the voters should look at and say, well, you violated your oath, you shouldn't be in again.

In the Biden case, involving the law is also a problem because now, of course, it's a special counsel, we can't talk about anything. What's needed here is not so much. If Biden took money, we need to know that fact. And the whole fact finding investigation of it is now stymied because it is under the law.

One of the aspects of legalizing it is we don't get the democratic process of finding out, did the big guy take ten grand and let the voters in time judge not whether he should get some criminal action for it, but is the guy we want in the office next time, the guy who took ten grand for the big guy?

And by making it legal, we don't get to see those facts. So again-

>> H.R. McMaster: Or at least until it goes to trial, John. Until it goes to trial.

>> John Cochrane: Well, which will be slow walked or whatever, but we need anything, even a trial doesn't get to the level of fact and political discourse of just investigation what happened?

Get it out, let us know, it's actually a funny way of stopping the facts from getting out. So it's your opinions on Biden and also on whether the legal system is the right way to find out about what's going on with Biden. They seem to be, by the way, they are acting as if they are guilty because if you were innocent, you would want to get those facts out immediately.

 

>> Andrew McCarthy: Yeah, well, I think first the stench that Neil detects is spoiled meat and potatoes, I think because the way that Weiss, who has had this case since 2018. The way he has investigated it, he has failed ever to indict the case. Even here we are, three or four weeks, whatever it is, after the plea deal with Hunter blew up in court and he never filed the indictment.

The reason that's significant is the way that you stop the statute of limitations from running in criminal proceedings is by filing charges. If you don't file charges, then the statute of limitations eat your case. So I think quite intentionally at this point, just to do the math, the statute of limitations for the relevant tax charges is six years.

For every other federal crime that's relevant, it's five years. So already, basically, every potential tax charge prior to August of 2017 is gone, which includes all of the three years of the scheme as it's been described when Joe Biden was vice president in the Obama administration. That is to say, the most serious potential corruption charges are no longer prosecutable because Weiss has let the statute run, and almost everything that's prior to 2018 or August 2018 is gone.

So if you're talking about bribery, money laundering, foreign agent registration violations and the like, those are going to be very hard to prosecute at this point because he didn't charge the case. Now, the idea that the special counsel appointment is theater. Weiss all along has been conducting this case as if his mission was to shield President Biden, from potential problems, not just criminal liability, but political liability.

He's the only Trump appointed US Attorney to be retained after Biden fired all the rest of him of them when he took office. He got confirmed because he had the support of the two Biden allied democratic senators in Delaware. Without that, he would never have been made US Attorney.

And his and his. Tickets to remaining US attorney has been to keep this case but not charge it. As long as that has gone on, he gets to keep his job. So this whole idea of special counsel is a function of Garland, the attorney general, essentially trying to convince the country that the idea was that if Weiss had only come to him and asked for special counsel authority, then he could file cases in any jurisdiction.

Apparently because of where Hunter lives and where he pays his taxes, the only places properly that you could bring the cases would be Los Angeles and Washington, DC, where Weiss doesn't have authority because he's the US attorney for Delaware. But that's actually the way things work in the Justice Department.

We have turf battles all the time between US attorneys. One US attorney can't block another US attorney from bringing a case. What happens is you go to the Justice Department, you argue it out, and then the attorney general or the deputy attorney general say to the US attorneys in, say, Washington and Los Angeles, in this instance, work with Weiss and bring the case.

That didn't happen here because Weiss knew that he wasn't supposed to ask to be given authority to charge these cases out of the district because there was no desire to charge the cases out of the district. And what we now know, based on the reporting over the weekend, is that not withstanding how appalling the terms of the plea offer that blew up a couple of weeks ago were, Weiss's intention actually was to drop the entire case without charges.

And the only reason that that idea fell apart was because the whistleblower, IRS agents, came forward and testified. And at that point, it was politically untenable to just drop the case. So ever since then, they've been putting their little heads together because this is supposed to be an adversarial process.

But in this case, you have the Biden private attorneys are working with the Biden Justice Department to figure out, is there some vehicle that we can have where Hunter pleads to something where it's not too serious, he doesn't have to go to prison. And at the same time, we can hold our heads up that we prosecuted him and give him sweeping immunity for anything else and then call it a day.

 

>> John Cochrane: The issue is not whether Hunter Biden goes to jail or not, which we don't care about. The issue is, do we have an investigation into corruption at the higher level, or is this all shoved into and slow walked into the justice system?

>> Andrew McCarthy: And what I'm saying, John, is that it may not be a perfect vehicle for the house oversight committee to do it, but they're the only game in town.

And they're actually doing a very good job with the limited investigative resources they have. I mean, look, all things considered, it's always better for the Justice Department to do an investigation because they have more ways to obtain information. But if you have a corrupted process at the Justice Department, the only way that we're ever going to get any accountability is what's happening now, which is the oversight committee is pursuing this investigation.

 

>> John Cochrane: The Justice Department now can say, well, there's the investigation ongoing. We can't talk, we can't do anything, right?

>> Andrew McCarthy: Well, that's what they've been doing anyway. But there is, as a practical matter, there is no investigation. If there were an investigation, two things, you'd already have an indictment because someone would be concerned about the fact that the case was disappearing.

And secondly, if you actually had an ongoing investigation into bribery and money laundering, you would never, in the middle of that ongoing investigation, give one of the main subjects of the investigation a plea deal to misdemeanor tax violations. It would never, ever happen. So there is no real investigation at the Justice Department, which is something, by the way, that Congress, that in and of itself, Congress should be looking into.

But the only way that we're going to unfold this whole thing is by allowing Comer to do his work. And I think that includes, it looks like we're about to have a controversy over whether there should be an impeachment inquiry or not. And to my mind, I don't think they have the votes for an impeachment inquiry.

The Republicans only have a four vote margin in the House, and there are a lot of people who are very hanky about the whole idea of doing that. And sensibly, I think they would actually say, you have no chance of impeaching Biden because it would be shut down in the Senate no matter what happened in the House.

I would just let Comer do what he's doing because at this point, I think that's the best way of getting to the bottom of this.

>> Bill Whalen: Andy, final question. I know you have to go. For all the politicians in Washington who are complaining about this on both sides of the aisle, don't they need to take a look in the mirror?

And I ask in this regard, if you're a Democrat, and you're worried about Joe Biden getting caught up in legal entanglements, run Gavin Newsom against him in a primary, run Gretchen Whitman. I'm sorry to all you Robert F Kennedy Junior fans out there, but he doesn't have serious opposition.

On the republican side, Andy, if you think Donald Trump is Jean Val Jean being persecuted, you had a chance to end this back when he was impeached the second time around. And what it's Senate Republicans do, they didn't convict him, why? They're afraid about getting primaries. So we have a situation where there is now a legal approach to what should have been a political situation, correct?

 

>> Andrew McCarthy: Yeah, I wish I had time to sit and listen to you guys bat that around, because I must say, we're in a situation where 70% of the country does not want a rematch between Donald Trump and Joe Biden. And yet, in a country of 335 million people, some of them extraordinarily gifted people, we're gonna give them round two of Biden and Trump.

And at a certain point, I think you have to ask yourself if you know what the public wants in that regard or how the public feels about that, and yet this is what you serve them up, something is very wrong with the system. Something is very wrong with the way that we're structured-

 

>> John Cochrane: You gotta go to the voting and vote for someone else.

>> Andrew McCarthy: Yeah, but look, as I said before, just the way the criminal justice system is being gamed in this is precisely, from the Democrats perspective, to get Trump nominated and then to run against him in the election.

Cuz they're sure they can beat him, and they're afraid that he is the only candidate that Biden can beat, because Biden is almost equally unpopular. And yet it doesn't seem that we're able to figure out a way to get out of this rut. And I just don't know what the answer to that is.

 

>> Bill Whalen: Well, why don't we explore the answer another show, Andy, come back on the show soon, will you?

>> Andrew McCarthy: I sure will. It was a pleasure to talk to you guys.

>> Bill Whalen: Well, thanks for coming on. Take care.

>> Andrew McCarthy: It's my pleasure.

>> John Cochrane: Guys, that was interesting and depressing.

And the question I wanna ask the two of you is it's not just about Trump versus Biden. As I see it, I'm very discouraged. I see us heading straight like lemmings over a cliff to a constitutional crisis. Imagine Trump wins this election. You can imagine what the other side, I mean, both sides will feel, with some good reason, that the other one, that the one who wins, is illegitimate.

Not just we lost, but this was an illegitimate election. You know what the Trumpers will think if Biden wins? That government censorship, perversion of the justice system. They went after our guy. And they hid the whole Hunter Biden business by control of the media and the justice system.

Not only is he illegitimate, but the system is rigged against you illegitimate. That's not a very healthy feeling. If Trump wins, God knows what's gonna happen on the left. I mean, they were the resistance, not my president, the whole institutional structure arrayed against the president. And they'll both be right.

Trump did, whether he did something criminal or not, he violated his oath of office pretty badly on the way out. And I think the Trump have a point, too. So that fundamental feeling of illegitimacy, I think that leads you straight to constitutional crisis where half of the country feels that the president is deeply illegitimate and that justifies all sorts of horrible things.

Am I right to be this depressed?

>> H.R. McMaster: Yeah, I think you're right to be this depressed, John and I'm the optimist in the crowd right? So I think it is. This is the ultimate issue, right? Is our confidence in our democratic institutions and processes and the election right at the top of that list in terms of the processes that we should have confidence in.

And what is disturbing is that really, there's this crisis of confidence in all branches of government now right? I used to think that, of course, the judiciary, the legal system, the criminal justice system, we should all have confidence in due process of law. I still have confidence in it.

But I think that because there have been these abuses, because there have been these failings, that it gives people an opportunity to just kind of pile on to criticisms and to sort of give up that these institutions can't be reformed. We talked, gosh, maybe two years ago, I guess, about, with Yuval Levin on congress.

And what a disaster, crisis of confidence in congress right? And then with no confidence in the executive because you doubt the legitimacy of the elected president okay, that's terrible. And this is exactly what our enemies want. I mean, this is what Russia was trying to do in the 2016 election.

They didn't give a damn. The Kremlin didn't give a damn who got elected. What they really wanted is to ensure that large numbers of Americans doubted the legitimacy of the election. And so I think you're right this should be issue and concern, problem number one that we're discussing and hopefully can avert.

 

>> Bill Whalen: Neil.

>> Niall Ferguson: Well, I wrote a book about a dozen years ago called the great degeneration, and one of its arguments was that the rule of law itself was in decay in the United States. And I think that book is standing up very well. I think you're right, John, to be worried I still cling to the hope that the two political parties will realize that they are on a kind of strange collision course with candidates that they should drop.

I still can't quite imagine we're gonna rerun 2020 in 2024. So I cling to the hope that one or both parties will blink. When you think about it, it's just a huge gamble that the Democrats have engaged in to use the law fair to ensure that Trump gets the nomination and the expectation, expectation that they can beat him.

And as I've said consistently, this just assumes far too much certainty, not least about the economic situation in the country next year. Which, as you know, John, may not be nearly as good as it is today if the effects of higher interest rates start to feed through to larger and larger sections of the population.

So I think the only way out of this collision, this disastrous constitutional crisis that you're talking about, is for one or both parties to blink and get another candidate up there so it's not too late for that to happen.

>> H.R. McMaster: Yeah I don't think we should underestimate what effective leadership can deliver in terms of bringing us back together in many ways.

We've seen examples of anti leadership in recent years. So let's hope for something different.

>> John Cochrane: Simple mind the store competence would be just fine at this stage. I mean, what I worry about is not so much one guy winning or the other guy losing, but the sense of, the sense in a democracy is the losers have to accept we lost, but the president is the legitimate president.

The justice system is, I submit to the justice system, even though they vote. My case is going badly, but I think the system is honest. When you feel it's illegitimate, that justifies all sorts of horrendous behavior, which I really worry about.

>> Bill Whalen: Okay, well, guys, I think we're going to be talking about this well into 2024, well into 2025 as well, and maybe even future elections God help us all.

And now, the moment you've all been waiting for it's the lightning round. Lighting round. Gentlemen, this is going to be a summertime version of the lightning round. We're gonna ask questions about what you did this summer, since this is our last show this summer. So first question, the three of you, is this your favorite season?

Which is it, winter, summer, spring, or fall John?

>> John Cochrane: Summer.

>> Bill Whalen: Summer, Hr.

>> H.R. McMaster: Hey, I got to go with summer more times, with more time with grandchildren.

>> Bill Whalen: Neil?

>> Niall Ferguson: Spring is preferable insofar as it exists in the United States in its pristine British variant. The problem with summer is, as it wanes, I get these feelings of melancholy.

And it's already kicking in. In late August, the shadows lengthen, the nights draw in, and the shades of the prison gate begin to close in. No, I much prefer spring. I'm also struggling with the phenomenon of the American summer as a place, as a time when one's children vanish into something called camp.

An institution invented, as far as I can see, to free American parents from their children when one most wants to see them. So, no, I'm with spring.

>> H.R. McMaster: Well, Neil, I want to see you in London soon. I'll make sure I give you a nice cuddle to make you feel better.

 

>> Bill Whalen: Yeah, Neil, I hear Sinatra's summer wind playing. While you're talking about how summer makes you melancholy, my vote goes to fall because the temperatures are cooler, the leaves are changing, and playoff baseball. All right, gentlemen, can you recommend a movie? Can you recommend a movie, TV show or a book that you enjoyed over the past three months?

 

>> H.R. McMaster: I'll go first on a book. I'm having the opportunity to take a trip to Europe here soon. And so I'm reading the Middle Kingdom, which is a new history of eastern Europe.

>> Bill Whalen: Okay, Neil.

>> Niall Ferguson: I think I may have mentioned already that I, on a previous episode that I immersed myself in American Prometheus, the Bert Irwin biography of Robert Oppenheimer on which the blockbuster movie is based.

I haven't gone to the movie. I have read the book. It's a fantastic book, a masterpiece of biography, and I highly recommend it.

>> John Cochrane: I have immersed myself in the last couple of months in reading the technical literature on monetary theory of the last ten years to catch up on.

And I heartily recommend that our listeners do not follow lead.

>> Bill Whalen: I am gonna go lowbrow here and I want the camera to focus on Neil Ferguson to get the disgusted look on his face. I went to see Barbie a couple of nights ago. I figured it's made a billion dollars in the box office.

Look at those disgusted looks. I may lose my Hoover chevrons for this. It's actually, gentlemen, a very clever movie. And if you make it to the last ten minutes, is a very smart, nuanced message about the relationships between men and women so don't prejudge. And I hope I'm on the show next week after I said that.

This is a terrible confession.

>> H.R. McMaster: It might bring Neil out of his melancholy if he goes with all that pink and you're wearing a pink shirt too today.

>> Bill Whalen: Well said.

>> H.R. McMaster: I think it'd be only appropriate if you went to school.

>> Niall Ferguson: Maybe, I'm a Barbie fan and I'm just in denial about it.

 

>> John Cochrane: All of those pointy heads should do more to understand American popular culture. So kudos to you.

>> Bill Whalen: Thank you, John. All right, and by the way, John, it was right around the corner from your house. I didn't have the heart to knock on the door to see if you wanted to go with me.

 

>> John Cochrane: You should have guys trip to go see Barbie would have been great fun.

>> Bill Whalen: Exactly. All right, gentlemen, final question. What was your crowning summertime achievement? Let's start with you, John, because sadly you're sitting in Texas right now where the winds were not blowing your way.

>> John Cochrane: Well, they were yesterday I won a day at the open class contest here in Uvalde.

So that was a fun achievement.

>> Bill Whalen: Okay, HR, your summertime achievement.

>> John Cochrane: Gliders, I guess that wasn't clear. I flew gliders faster than the other guys. Fine gliders out here.

>> H.R. McMaster: I had fun and I procrastinated a little bit on this manuscript I'm supposed to deliver here soon.

So my achievement was having some fun and some procrastination. Now I'm paying for it, Bill.

>> Bill Whalen: Okay, Neil, your summertime achievement besides the fact you survived the summer given that everything is going on in your world right now.

>> Niall Ferguson: It wasn't really my achievement, it was my five year old son, Campbell caught fish.

First he caught a bass in a lake, and then he caught a striped bass in the sea of New England. And the look on his face as he reeled in that striper was the highlight of my summer by far.

>> Bill Whalen: The highlight of my summer was my July spent in South Carolina in the company of my sister's grandsons, my grand nephews.

These are wonderful little boys between the ages of seven and four. A couple of points about this. Number one, God has been cruel to me. I've been blessed with a dad bod, but not dad muscles. And Neil can relate to this. You put four boys in the pool, everybody wants to get thrown in the air.

That gets very old very fast. Point number two. At this age, they're really kind of coming into their own and becoming very intellectually curious about things. So they're asking a lot of very fun, clever questions. And then point number three, I respect the three of you even more, having spent time in the company because you all are not just brilliant scholars but you are wonderful dads.

I have not been blessed with bringing a child to this world. I can only imagine the joy that three of you have had raising children, giving them the love and the support that they need to go on and have wonderful lives. So I salute the three of you, and I salute our audience as well for sticking with us.

It's very funny in the summertime when we go on breaks, you guys get very worried about us and ask where we are. We appreciate that. We also look forward to your input. On that note, I think our next episode is going to be a mailbag show. We want to get your questions, so you'll probably be getting a video from me very soon asking for your questions to the GoodFellows a lot we have not talked about in the last month or so.

So keep in mind what you want to ask, Neil, John and HR, and that'll be in early September. So on the behalf of the Goodfellows, Neal Ferguson, John Cochran, HR McMaster, all of us here at the Hoover Institution, we hope you enjoy today's show. We'll be back soon with new content.

Until then, take care. Thanks again for watching.

>> Narrator: If you enjoyed this show and are interested in watching more content featuring HR McMaster, watch battlegrounds also available@hoover.org dot.