WTH is going on with impeachment? Andy McCarthy on the case, the 25th Amendment
Episode #85 | January 12, 2021 | Danielle Pletka, Marc Thiessen, and Andy McCarthy
Danielle Pletka: Hi, I'm Danielle Pletka.
Marc Thiessen: And I'm Marc Thiessen.
Danielle Pletka:
Marc Thiessen: You say it with more enthusiasm every time, because this is the best name for a podcast ever. We came up with it because it's never been more appropriate. And particularly 2020, the year of what the hell. And we thought the new year, okay, things will get better, and 2021 is starting out with even more what the hell than 2020.
Danielle Pletka: Right. If you thought you hated 2020, just wait. So, before we go onto the latest of the what the hell, and everybody's going to be able to guess what we're talking about, let us remind you, please subscribe. Please tell your friends. Please review. Please don't hesitate to reach out to us with ideas. We love hearing from you. Now, Marc, what the hell this week?
Marc Thiessen: Donald Trump is about to become the first president in American history to be impeached not once, but twice. And Nancy Pelosi has announced that if Mike Pence doesn't invoke the 25th Amendment and remove Donald Trump from office, the House is going to move forward and impeach him again. And she's called General Milley to make sure that Donald Trump can't launch a nuclear strike and says that the danger to the Republic is such that we cannot wait another minute. And so, we are scheduling the vote on Wednesday and the Senate will take it up on January 19th at the earliest because the Republic cannot wait another day with Donald Trump in office. What do you think?
Danielle Pletka: Well, look, we can diminish this. The problem with Nancy Pelosi and generally with the Democratic Party is that they take a really solid hand in this instance and they overplay it. And of course, Nancy Pelosi cannot resist the theatrics, the operatics that are going around. She cannot resist, if I can say this fairly, exploiting the absolute outrage that occurred on Capitol Hill that you and I talked about in our last podcast, the absolute outrage. She can't resist exploiting it, exaggerating, and going that one step further. But the bottom line is that I think that a lot of people, probably you and I included, believe that Donald Trump has this time around, if the first time you don't succeed, this time around, Donald Trump has actually committed impeachable offenses.
2 Marc Thiessen: Oh, I agree with you 100%. I mean, I was on Fox News on the show called the Wise Guys yesterday. We're supposed have a segment on 25th Amendment and impeachment and sort of got side railed on to other elements of the atrocities that happened on Wednesday. And Trey at the end said, "Well, I'll assume none of you are for impeachment." And I said, "Well, hold on. Don't assume I'm not for impeachment." And I laid out the case why I think there're two things. One, I think Donald Trump did commit an impeachable offense. And then, there's a question of whether as a matter of prudential judgment, it is prudential to proceed with impeachment considering the fact that he's leaving office in a matter of days. I think it's unquestionable that what he did was impeachable, a high crime and misdemeanor, inciting a riot and basically refusing to defend the Constitution, pressuring Congress to do something that was clearly unconstitutional, ginning up a crowd with lies about the election, and then sending them off to Capitol Hill to protest, to pressure those members.
Marc Thiessen: And then, it got out of control. I think it's clear Donald Trump didn't intend for them to storm the Capitol, but you know what? If you're in the forest playing with matches in California and you light a forest fire that ravages people's homes and kills people, I'm sorry, playing with matches makes you culpable. Even if you didn't mean to set the forest fire. And that's what Donald Trump did.
Danielle Pletka: Right. But I think it goes further than that, Marc, because I agree with all the points you just made, but I think it goes further because had the president popped up, ran into the Oval Office, gone to the podium, and said, "Guys, this is not what I meant. Get out. I meant peaceful protest. Don't do this." That would have been one thing, that might've been exculpating. But instead, what he did was he sat on his hands, reportedly fiddling with his remote. What he did was he never reached out to his vice president to see if he was okay.
Danielle Pletka: What he never did was reach back to the leadership. A decent human being would have freaking called Nancy Pelosi and Mitch McConnell and apologized. And instead, now we all know Donald Trump is not a decent human being, but he did none of that. He had to get muscled into doing what approximated the right thing.
Marc Thiessen: And then on top of that, I mean, five people died including two Capitol Police officers. And by the way, that Trump had to be bullied into lowering the flag at the White House to half-staff, resisted doing it. So the flag was flying at half-staff on the Capitol, but at full-staff at the White House for days after this event.
Danielle Pletka: It's disgusting. He has not called the families. Pence has called the families. He cannot bring himself to do it. This man is so unfit, it's just-
Marc Thiessen: So this is the argument for impeachment, he crossed the line on Wednesday that he had not previously crossed where he demonstrated himself to be completely unfit for the office of president. As I pointed out, look, after the election I tried to give him my best advice, which was to accept the results of the election and say you're going to run again in 2024. And you really actually do have a chance of retaking the presidency, but you have to behave normally in order to preserve that option.
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3 Marc Thiessen: And not only did he reject that advice, he went the other way. But the reality is he is still a live option, he could conceivably get elected in four years' time because his movement, while a large number of people are absolutely horrified by what happened on Capitol Hill on Wednesday, there are a significant number of people who don't blame the president for what happened and would support him again for president. And so the question becomes, it's not so much the issue of removal because he's going to be removed by the Constitution on January 20th. The question is, should he be disqualified formally from ever pursuing the presidency again?
Marc Thiessen: And I think there's a very strong argument for that. There's a countervailing argument that says, we need to put this behind us and starting out the Biden presidency this way is going to divide rather than unite us. And so, it's a really tough call. I probably lean towards cauterizing the wound and making sure it doesn't come back. But there's good arguments on both sides.
Danielle Pletka: So I'm with you. From my standpoint, I just play this forward. If Donald Trump doesn't become the Republican nominee in 2024, and he isn't precluded from becoming a nominee, what'll happen is he will run as an independent and he will then damage not just the Republican Party, but our political system. The price for America, for our Constitution, for our democracy, I think is too high. I'll be interested to hear what other people think. Don't hesitate to circle back to us to tell us you think something different, folks. But in addition to all of this, there are a lot of legalities here. There are questions about impeachment. Can you impeach a former president? There are questions about the 25th amendment. Is it real? Is it live? Is that an option?
Danielle Pletka: Just because Nancy Pelosi says it doesn't make it right, but it doesn't make it wrong either. We need to learn more about this. And we've got a great guy with us to do just that. Many of you know Andy McCarthy from his work at National Review, but he was an assistant US D.A. for the infamous Southern District of New York. He led the 1995 prosecution against Sheikh Omar Abdel Rahman, the infamous blind sheikh and others in the 1993 World Trade Center bombing. He's prosecuted terrorists who bombed US embassies. He is a legal expert, a thoughtful guy, a wonderful writer. So we're super lucky to have him to talk these issues.
Marc Thiessen: Andy, welcome to the podcast.
Andy McCarthy: Great to be with both of you. Thanks.
Marc Thiessen: So listen, here's the million dollar question. It looks like Nancy Pelosi is going to be moving forward with impeachment this week. Before we get into the technicalities of can it happen? Should it happen? And all the rest of it, basic question: Did Donald Trump commit an impeachable offense last week?
Andy McCarthy: I think he did. This may be the classic case where you have something that's an impeachable offense that can't be prosecuted in court. And I think the reason for sense meaning, and then another very technical meaning if you charge them as a crime in an indictment-
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4 Marc Thiessen: You prosecuted an incitement, right?
Andy McCarthy: Yes. We prosecuted the blind Sheikh among the various terrorism charges we had against him for inciting attacks against the United States military and inciting the murder of Hosni Mubarak, which they tried to pull off a couple of times.
Andy McCarthy: So an incitement case is very difficult in criminal court. The First Amendment makes it that way. You have to intend that a violent crime take place. You have to make clear statements calling for violence. There has to be proof that you really meant it when you said it. You can't be like the guy behind home plate, going serious. And we happened to have probably the best evidence that you could have because we were dealing with a terrorist who had done this kind of thing in the past. So there was a track record of his calling for violence. You don't have anything with Trump like that.
Andy McCarthy: With Trump, I think what you have is he recklessly stokes a throng of people that has some mob elements in it. And I think it's perfectly fair to say it was foreseeable that something bad would happen, but it would be very hard to
for violence to happen, much less for people to get killed as five people tragically were. So I think it'd be very hard to convict him in court, but it's clearly, on the other hand, a deep betrayal of his obligations as president, both in the context that it was an attack on his obligations to protect our elections, rather than undermine them, and to protect Congress.
Andy McCarthy: He really betrayed that and he acted in a very reckless manner. Impeachment goes basically to whether you're fit for an office of high public trust. So I think it's just a classic situation where you have someone that even if you couldn't convict them of a crime beyond a reasonable doubt, it's clearly an impeachable offense.
Danielle Pletka: So Andy, you wrote a great piece on this in National Review, and we'll link that in the transcript. But I think that the distinction you make is important. And I want to talk about the technical issues and I want to talk about the politics. So, all right, you've made the distinction. Criminally, no case. Politically impeachable, there is a case to be made. Now, we understand how this works because of course we've been down this road, not simply with Donald Trump, but also with Bill Clinton and others before. And that means that the House acts. And then, they send the articles to the Senate. The Senate either votes to convict or votes to acquit. Talk to our listeners a little bit about the problem, not just with Donald Trump being close to the end of his term, but the problem with Congress not being in session.
Andy McCarthy: Logistically and practically speaking, it makes it very difficult to do this. Now I should say, Dany, at the beginning that on this point, I think it was really bad for the House not to reconvene immediately and move on impeachment, which as we've seen in the article that they've put out, which is about four pages long, it's not like this needed to be War and Peace, right? They wrote an article of impeachment and they could easily have voted on it. They're planning to vote on it, as I understand it now, this Wednesday.
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5 Andy McCarthy: So they clearly could have moved quickly if they wanted to. And I just think this is more politics than law, but it's a hard sell to tell people that this president is now so dangerous that we can't abide him being in power for one more moment and we're going to get to it right after we get back from the weekend. I just think if we really have a crisis in the country, that's what Congress is for, to deal with it. Regardless, they are going to move ahead. But I think they've undermined their case that this has to be done and be done before he leaves office.
Andy McCarthy: They are not in session either. I guess my understanding is it's easier to call them back into session under their rules and they are coming back. So they're coming back on Tuesday. They have a resolution, which I think Speaker Pelosi must know is absurd, which calls on Vice President Pence to invoke the 25th Amendment, which is not intended for this situation. That's where you have a president who's under a profound medical disability, not misconduct. 25th Amendment is not a substitute for impeachment. So they're going to go through that song and dance while everybody comes back. And then Wednesday they're planning to introduce and perhaps vote on an article of impeachment. So sometime Wednesday or in the days after Wednesday, they would do that.
Andy McCarthy: In the meantime, the Senate is in recess until January 19th. President-Elect Biden is supposed to be sworn in on January 20th, of course. Under their rules, when they're in recess like this, it requires unanimous consent to come back early. So as a practical matter, all they need is one person, one senator to object, and they wouldn't be able to come back before the 19th. So you wouldn't be able to even start an impeachment trial, assuming that the House not only voted on an article of impeachment, but then Pelosi, and I would nail her down on this because she played games about this a year ago when we went through this, she'd have to name impeachment managers and transmit the articles of impeachment to the Senate. So I don't see how you could begin a trial in the Senate any earlier than January 20th. And the likelihood would be it would be later than that.
Andy McCarthy: And again, if the point here of doing this with somebody who was going to be out of office anyway is that we have a crisis and we can't wait another minute to have it done, I just don't understand the dithering to this point. I know it's only five days and that seems like a short period of time, but if you're alleging that there is a real crisis that the government is trying to operate under, I don't think you wait five, six, eight days, which is what they've done.
Marc Thiessen: The other reason to impeach is to make sure if you think that the current president is unfit for office, to make sure he can never hold federal office again, because Donald Trump, until this whole fiasco, was really the first president since Grover Cleveland who had a realistic chance of coming back and winning back the presidency after losing it four years earlier. And his movement is still very powerful and there's a lot of people who are ... If you talk to the senators, their phone calls are not running towards impeachment, they're running towards, "Stand with Trump. What's wrong with you people?" At least on the Republican side. Senator Toomey was on the air this weekend, and he's actually raised the question, said it's questionable whether it would be constitutional to impeach the president after he's left office. And also there's some question as to whether barring him from holding office again, whether that's constitutional. Can you talk about those two constitutional questions?
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6 Andy McCarthy: Yeah. So I happen to be in the camp that says that you can impeach even after a person is out of office because of the disqualification remedy. In the Constitution, as Marc just said, there's conviction, which requires a two-thirds vote of the Senate, there is removal, which requires a two-thirds vote. And interestingly, there's a couple of cases involving judicial impeachments, I think they're both from the 20th century, where the Senate ruled that removal and disqualification, which is the other remedy, are separate and they need to be voted on separately and removal requires a two-thirds vote, so it's kind of implicit in the conviction, I think. But disqualification only requires a simple majority. I was surprised to hear that. I had always thought they were the same. And I actually thought they were implicit in the verdict.
Andy McCarthy: We're in a lot of uncharted territory here because we've never had a presidential impeachment that went further than the verdict stage. So we've never seen how this all unfolds before. But there is a dispute in the law. I happen to think that there's nothing in the Constitution that says that you can't impeach somebody who's already out of office. And the fact that there's a disqualification remedy would imply that there's a reason for impeaching after the president is out of office or after an office holder is out. There's another school of thought, which is also a very plausible, colorable way of looking at it that this is all moot once the person is out of office.
Andy McCarthy: And I have to say, just as a practical overlay on this, if after what he's done, you would actually need a formal disqualification in order to prevent Trump from becoming president again, I think we have bigger problems in the country.
Marc Thiessen: Well, we may have bigger problems.
Andy McCarthy: Yeah, we may. But I have to say Marc, I've been supportive of the President when I thought he was advancing conservative causes and when I thought he was in the right on things. But for the people who say that there are 74 million people out there who are angry and who suspect that the election was not on the up and up, I think that's ridiculous. I mean, there's a lot of people who voted for Trump because they were voting against Biden. And I don't want to minimize the president's support, because I'm sure-
Marc Thiessen: I know one.
Andy McCarthy: Yeah. Right. I know one too. But not wanting to minimize his support, I think there's some small but not insignificant percentage of those 74 million people are hardcore Trump supporters. But that doesn't mean that they're more ... Maybe they're 20 million. I don't know. That may overstate it. It's much harder to imagine President Trump being nominated and elected again when he's out of office than maintaining him in office through reelection. I really don't think ... I mean, if the only reason for doing this is to disqualify him formally, I think you could just do that with a censure.
Marc Thiessen: But if you go back to the 2016 election and the primaries, Trump was winning these primaries with 25, 30, 35% of the vote because it was a crowded field. It's perfectly plausible that he could win the Republican nomination because he would have his block united behind him and everyone else would be divided.
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7 He may not win the presidency back, but he could be the Republican nominee in 2024.
Andy McCarthy: Yeah. Let me just push back against that a little bit. It's obviously true that that could happen. And if they're moronic enough to run so many people that just on sheer name recognition, he does better than he should, that's one thing. But I have to say, and I have to plead guilty here, I was one of the people at National Review in 2015, who was basically saying, "We can't take this seriously. He's not conceivably serious about this. He'll get bored. He'll stop. It'll be over." And then the next thing you know, it became a juggernaut. There were people, my colleagues at National Review, Ramesh and Kevin Williamson and Jonah, and a number of other people said, "We got to take this seriously now." And I was like, "Get out of here. Donald Trump." So sure, 2016 was unusual, but I don't think that's going to replicate now that we've seen him in office. I just don't see that.
Danielle Pletka: Andy, there's a bunch of polling on the very question you raised. Well, anytime someone cites polling, you should suspect them, myself included. And there's basically a poll to satisfy everyone. But The Hill last week wrote about a poll that the PBS NewsHour did with Marist that said 18% of Republicans support the pro- Trump rioters. Right? But then there was another poll that said 51% of Republicans think Trump deserves no blame for the Capitol riots. But clearly there are not 72 or 73 million Americans who all think that everything that happened was okay.
Danielle Pletka: Before we start talking about the wisdom and the politics of this, and particularly about the question I know that Marc and I both want to explore, which is the problem of the Democrats overplaying their hand, let's just circle back to the 25th Amendment, because that has been something that even Republicans have mentioned. Now, we know that Pence isn't going to do it. Okay? And we know it's, as you would say in good lawyerly fashion, a moot question. But I think it's important that people understand that when the Speaker of the House tosses something around like this mindlessly, she's not speaking from law. She's speaking from politics. Can you explain this?
Andy McCarthy: Yeah. I also think that she's particularly speaking from politics because Congress has an appropriate remedy here, which is impeachment. And she's basically saying, "Hey, Pence, I'll hold your coat. Why don't you take care of our business for us?" Because I don't think she can excuse the fact that she's dawdled for a number of days and now she wants to blame Pence like he's the one who's been sitting on his hands.
Andy McCarthy: On the other hand, the temptation here, if there's a good faith reason to invoke the 25th Amendment even though it doesn't apply to this situation, it's because if anything's been made clear in this situation, I think it's that we have a hole in the law that we have to fix ... And this is after the dust settles and all that stuff. But if we woke up tomorrow morning and there was ironclad evidence that the president was a Russian spy, undeniable slam dunk evidence, you can't get them out with the 25th Amendment. The temptation of the 25thAamendment is as soon as the vice president and half of the cabinet invoke it, at that moment, the vice president becomes the acting president. And in this situation, the reason it's tempting, even though Trump is obviously not laboring under a 25th
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8 Amendment type disability, is the way that the process works, you could run the clock for the rest of Trump's term with Pence as acting president before you ever adjudicated whether Trump was really disqualified under the 25th Amendment.
Andy McCarthy: So the temptation here is it's very hard to impeach a president with two weeks to go, and now nine days to go, whereas this would be instant if you invoked it. The problem is it would not be lawful to invoke it because that's not what the 25th Amendment is for. But if we're down to impeachment, the problem is it's hard to do. And Justice Jackson famously said the Constitution is not a suicide pact. It can't be that we can't remove a president who we see has to be removed this minute, because we're a little persnickety about due process. When there's a situation where you have to get the president out of there, we've got to be able to get them out of there.
Danielle Pletka: made, I guess in order to help persuade Trump that this is a good idea, is no, then if Pence becomes president, he can pardon Trump and it would be bad for Trump to pardon himself. That's sort of the Nixonian argument, I guess, that it's maybe trying to persuade Trump to resign in order to save him from legal process. Do you have any thoughts about the Trump pardoning himself and his entire family shtick?
Andy McCarthy: Well, I happen to be in the school of thought that the president has the constitutional power to pardon himself. And I don't really see how the pardon power can be read any other sensible way, because in the pardon power, it says that the president cannot pardon impeachment and removal, which means, to me, the framers obviously thought about the president issuing a self-interested pardon, and they drew the line at impeachment, which implies that they thought about other kinds of self-interest, and they didn't say he also can't pardon himself from criminal liability. I think he can do it, but a lot of people don't think he can do it. There is risk for Trump in the idea of if he pardoned himself, I don't know of a case where it's ever happened where someone's issued a pardon, much less a pardon for himself, and someone tries to prosecute him for the pardon conduct and he has to introduce the pardon as his defense at the trial.
Andy McCarthy: I don't know how that would work out. There's a lot of legal experts that think if it's a self-interested pardon, that a judge won't hold it up or that the Supreme Court won't ultimately hold it up. In that sense, there's at least some risk for Trump in terms of whether it would be held up. It would be better for him in terms of knowing where he was at, and it would be better for the institution of the presidency and the pardon for the vice president to pardon, because that's not as self-interested, but it doesn't mean that he can't pardon himself.
Marc Thiessen: I'm not sure Mike Pence would actually pardon him at this point. Andy, the pushback on impeachment at this point, one of them is that we've dumbed down impeachment so much during the Trump presidency. The Ukraine, I think we all agree that the Ukraine impeachment was a political act. It's now become a proxy for a vote of no confidence. We're turning ourselves into a parliamentary system and using impeachment as the proxy for a vote of no confidence, and that impeachment should really be reserved for seriously high crimes and misdemeanors where the continued service of the president is a threat to the
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9 country. What do you say to that argument?
Andy McCarthy: I think if someone played a little trick at the ATM machine that they figured out a way to get the machine to give you 40 bucks instead of 20 bucks, and somebody had decided to prosecute that as a bank robbery, I wouldn't say that we had so trivialized bank robbery that if the bank got robbed at high noon at gunpoint that we shouldn't prosecute that anymore. I kind of think what happened last week was pretty serious and wholly apart from where I think the
would otherwise be, he was attacking the election system and he violated his responsibility to protect the Congress.
Andy McCarthy: He's also responsible for being reckless, and he has to be accountable for everything that happened including the five people who died, even if he didn't intend for them to die. It seems to me that it's a pretty serious straightforward impeachment and if it was framed that way it would get a large consensus vote. I think they're making a big mistake trying to make it into a historical document that'll be hard for about ... Kind of like the coda of their four years of going after Trump that they're going to ask Republicans to sign off on. I think there's a way to write this that would make it a consensus document where the mainstream of opinion would be that he was unfit to hold the office and ought to be removed.
Andy McCarthy: I do think last time around was a trivialization of impeachment, so much so that when the Democrats had their convention it was barely even mentioned, even thought that was honing their case against Trump for the purposes of the campaign. That's kind of water under the bridge when you're dealing with something that's as serious as what happened last week, I think.
Danielle Pletka: Let's talk about politics. Let's talk not about the politics of them really wanting to watch that last episode of The Crown over the weekend and therefore not being willing to reconvene in order to vote on the most momentous issue of the 21st century. I'm curious what you both think. Is it possible that even if the House and the Senate don't act, that people just forget about what happened at the Capitol and that he actually can resurrect his political career? I want to ask about the state proceedings against him after that, too.
Andy McCarthy: I don't think he can. I mean, I think he's always going to have a rabid following and because he's got the bully pulpit at the moment, I think that's got a way of making that look bigger than it is. It'll be more evident once he's out of office that his supporters are really this core of very strong adherents and it's only a fraction of the 74 million people who actually voted for him over a variety of calculations. I think he's done as a national ... I don't think he's done as an impact figure, but I think as a national political candidate he's done.
Danielle Pletka: What about the state option? We've all learned, everybody's become an armchair lawyer, constitutional lawyer over the last couple years. We've all learned that even though the president can pardon himself and Jared and Ivanka and Melania and God knows who else from federal prosecution, from federal crimes, he cannot protect himself from prosecution in New York State, for example, where they have been building cases against him hammer and tongs
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10 for a while. What are the legalities there?
Andy McCarthy: It's interesting. I thought, Dany, that he should have, just strategically if I had been advising him and he wanted to do this, I would have told him to commute Manafort's sentence but not pardon him, because I think by pardoning him he opened him up to a lot of potential prosecution in New York where they've also been looking at Manafort for a long time.
Andy McCarthy: I don't know how serious the case is against Trump in New York. The Times did this blockbuster report on the Trump empire's tax practices for the last 40 years and suggested that there might be tax liability and bank fraud and money laundering and the usual array of stuff when you're talking about financial fraud. It seems to me that a lot of this stuff, when I read this thing, seemed like it was time barred, and I would note that even though there's problems with indicting the president, there's not problems with indicting other people in the Trump organization and nobody has been charged. How serious that case is, I don't know. Nothing he does in the way of pardon at all removes the jeopardy from the New York potential prosecutions, and any other states, by the way, that might be looking for him, but only reaches federal criminal behavior.
Marc Thiessen: all the Sunday shows every former Trump official that went on that was basically told, "Why didn't you foresee this? Why did you enable him? You're responsible for this. We were warning you and you wouldn't listen. There were signs of this." Are those who went along with Trump responsible for what happened last week?
Andy McCarthy: No, I don't think so. Look, I think that the main responsibility for what happened last week, you can't remove the president as a catalyst for this and he has to be accountable for that. These were adults who went into the Capitol and did the stuff that they did. They're principally responsible for that. Trump has never been a responsible actor in terms of his public rhetoric.
Andy McCarthy: The problem is we have a country of 330 million of the most gifted, in many cases, wonderful people in the history of people and we get down to our elections and the two people they give us to inhabit the most powerful office in the world turn out often to be rogue number one versus rogue number two and it's pick your poison. If you want to start talking about root causes, I guess the root cause is why does the system continue, when we have such a wealth of gifted people in this country, why does the system continue to give us the choices that we get?
Andy McCarthy: Where I fault myself at this point, and there's a lot of soul searching a lot of us are doing now of course. I was pretty adamant that it's a binary choice, that it's always a binary choice and you have to make it. I think the reason I felt strongly that way is because in the world I come from, which is not journalism, sometimes the government has a really crummy case where the FBI does really lousy things to collect evidence and the defendant is a really bad guy who, if he doesn't get convicted, will go out and do terrible things again, and that's your choice.
Andy McCarthy: We tell 12 people, "You choose." We also tell them, "Look, there's no third vote,
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11 no middle way. You either convict or you acquit." We expect 12 people to make that decision, even if it's a terrible one. It seems to me that if you have two terrible candidates, if you say, "I'm not making the choice because I'm above all that," then somebody else is simply going to make the choice.
Andy McCarthy: Either Biden was going to be president, or in 2016 either Hillary was going to be president or Trump was going to be president. It's harder to make that argument now after watching what's happened the last two months. I don't know that in good conscience I could tell anyone that I would, even if it was Hillary Clinton again or Biden, I would never vote for one of them, but I couldn't tell people after this that they should look beyond everything that Trump's character portends for the presidency and look at these great policies and these great people he's going to put in the executive branch. Because when it gets down to really crisis level stuff, it becomes clearer and clearer to me that you can't just separate out the president's character from the rest of the package.
Marc Thiessen: Was what happened after the election qualitatively different from what we saw before?
Andy McCarthy: I would say there is a very big qualitative difference which is that for the vast lion's share of the preceding four years, I think Trump was a norm breaker and that rubbed a lot of people the wrong way because of his style and his approach to politics and that sort of thing. Even when he did things that were controversial, if you look at, for example, the executive orders, he always talked about doing it within his power under the Constitution and within what federal law said.
Andy McCarthy: He pretty consistently took the position even when he got out of bounds, he would let his aides push him back into bounds. What he was doing, even when he was acting in a very unpresidential awful manner, was at least consistent with the law and the Constitution which allows a lot of stupid, aggressive, awful things to be done. I think what happened after the election is he went from a legitimate challenge to whether there was fraud, which every president's entitled to do, and given the margin in the battleground states, some of that may have been appropriate. But he went quickly from that to undermining the election system and ultimately taking a position that would have destroyed the Constitution, which is that the vice president had the unilateral authoritarian power to change the election result. And I think it's fair to look at what happened on Wednesday as, if it's not a direct assault by the executive on the legislative branch, it's at least a reckless stoking of something that should have been foreseeable that turned out to be an attack on the executive branch. That undermines the constitutional system in a way that I don't think he did before the election. So I do think that's a big qualitative difference.
Danielle Pletka: Andy, you've been awesome, and I think this last bit of our conversation really echoes something that I think a lot of people have been struggling with. In that binary sort that we're faced with in our system, "Did I do the right thing? Could I do it again? Why was I faced with this choice?" A lot of people feel let down by our system, and notwithstanding the fact that we had more voters out, more participants out in the last election than we've ever had historically, I think a lot of people have walked away a few months later really, really dispirited about our system. And I know I count myself among them. But you've really helped
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12 illuminate some of the challenges that we're facing in the last waning days of the reign of Donald Trump. So thank you so much for taking the time with us.
Andy McCarthy: Oh, thank you. I love your podcast, so it was great to be here.
Marc Thiessen: All right, Dany. So Andy McCarthy raised some really, really interesting issues. Andy, like you, like me, with differing levels of enthusiasm, have taken the approach over the last four years of calling balls and strikes. Of saying, when Donald Trump does the wrong thing or behaved abominably, calling him out for it, saying it's unacceptable, but also supporting him and praising him when he did the right thing. And he did a lot of right things. I mean, the Abraham Accords are historic ... You think back and say, "Okay, Nixon, because of Watergate, do I oppose the opening to China? Is that de-legitimized?" And also the issue of, this is a binary choice. Do I look back now and think, "Yeah, I think it would be better if Hillary Clinton had appointed the last three Supreme Court Justices, and we had a liberal majority on the Supreme Court that would now be enabling the Sanders, Ocasio-Cortez wing in its coming assault on our democracy?" It's a really complicated and difficult issue.
Danielle Pletka: Look, I've had people all over the last week saying to me, "Really? You said that you thought that Donald Trump might be the last thing that stands between protecting our institutions and the destruction of those institutions by the Democrats." And I was wrong. I think that there is a school of thought that says that this was the natural culmination of Donald Trump's presidency, that this is who he was all along, we should have known it, and for that reason we should have opposed him.
Danielle Pletka: And, look, first of all, I didn't know. I think I was as shocked as you were, as many were, by what happened. I think, frankly, Nancy Pelosi was shocked by what happened. If they hadn't been, presumably they would have had a better police presence, a better security presence.
Marc Thiessen: Very good point.
Danielle Pletka: If they really thought that Donald Trump was going to was going to stir up a violent crowd to go and invade the capital at the moment of certification, then I think they probably wouldn't have put themselves in harm's way, or they would have ensured that there was a better security presence. Nobody knew what was going to happen. I don't think anybody believed that this was what he would do. And all we can do is realize that having done it, he deserves condemnation. He must be excised from our political system. And that is, I think, what should happen. I think you and I agree.
Danielle Pletka: The real question, though, is how, and that how is very, very hard. There are a lot of people who are in a very invidious position right now, a lot of people who recognize that they still don't understand the electorate that brought Donald Trump to power, that they still don't understand the electorate that sent out 73 million people to vote for Donald Trump, even after we knew him in 2020, and they're scared to alienate them. I don't know what they should do. What advice would you give a member of Congress that came to you and said, "What should I do?"
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13 Marc Thiessen: Before we turn to that, I wanted to say something about what you had said earlier, which is there was a movie a decade or so ago with Tom Cruise called Minority Report where they developed technology to figure out what crimes you were going to commit, and arrested you in advance of committing the crimes. And we're basically being told that we should have had a political minority report, that we should have all known that Donald Trump was going to commit this crime and stopped him before he did it. And the reality is, until he made the choice to behave this way, he hadn't committed the crime, and it wasn't inevitable that he would do this. He had advisors around him who were pushing back and telling him not to do this, and he basically shut them out and chose to go with the nut jobs. And that's a choice he made.
Marc Thiessen: But I don't think that you can go back, a la minority report, and suddenly say that anyone who supported the Abraham Accords, and supported his Supreme Court Justices, and the people who went into the administration and tried to do good things and achieve conservative goals somehow are now complicit because the President of the United States turned around and committed a crime, any more than you can go back and blame the people who went into the Nixon administration and did the opening to China and did a lot of good policy things and suddenly are culpable in Watergate. Watergate was a crime. The president needed to be removed for it. He resigned. He had the decency to resign, unlike our current president, after having done that. So I just don't buy into the, "You're all culpable. You're all responsible," argument.
Marc Thiessen: In terms of going forward, it's a really difficult position that it's putting people in, which is why Nancy Pelosi is so enthusiastic about pursuing impeachment. It's not because she ... As Andy pointed out, the timing. If this was so urgent, they should have called the Congress back right away and passed those articles of impeachment immediately, and sent them to the Senate, and insisted that the Senate convene and forced Mitch McConnell to have somebody go up and object to bringing it up. Because if it was so urgent that Donald Trump was a threat to the republic, they should have removed him right away.
Marc Thiessen: She's enthusiastic about this, because this is a remember in November vote. And with Democrats, it's pitching putting Republicans against their own constituents and a very, very pro-Trump Republican base that is going to see the vote to convict as a betrayal. At that rally in Georgia, where the president said, "I'm going to come and campaign against your governor in a year and a half," and he actually apparently threatened Kelly Loeffler saying that, "If you don't object to the electors, I'm going to do a number on you in the rally in Georgia," that he had the day before the election. So he basically threatened her. Those are live threats. There are people who he may come after them. And so it's a really hard position, but my philosophy in life generally is you have to do the right thing, and damn the consequences sometimes. And that the President of the United States has done something that is beyond the pale, that is an impeachable offense.
Marc Thiessen: And quite frankly, the bigger threat, political threat to the Republican Party long- term is the possibility that he could come back. There's a danger that the Trump dynasty could try to emulate the Bush dynasty, and you could see Donald Trump Jr, or Eric Trump, who were even more vocal in that rally in terms of stirring up the crowd, suddenly try and come back, and a la George W. Bush, come in to have a
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14 second Trump term with one of them one day.
Danielle Pletka: Look, you know something? This is the perfect note on which to end, it's been a disgusting week, and the right advice to people is, do the right thing.
Marc Thiessen: Yup.
Danielle Pletka: Right? That's always the right advice. Last night, my family and I watched the execrable, the horrible Wonder Woman '84. It was so bad. And it had this absolutely pathetic political message. "Truth is what matters." Well, I wouldn't say that for many people truth is what matters, but I would say principles, doing the right thing. Absolutely. Principle before politics should be our mantra.
Marc Thiessen: Can I say one thing, though? We need to distinguish between Trump and Trumpism, and between Donald Trump and his followers, right? So Donald Trump is a deeply, deeply character flawed individual who came to power because he spoke to and represented a large number of Americans who were being ignored by the political classes in Washington of both parties, and who sent a gorilla into the nation's capital to start breaking china because they weren't being heard. And there were millions of people ... Just like in the racial justice riots over the summer, the Democrats constantly downplayed the riots, by the way, and said that most of the protesters are peaceful protesters who don't support the violence. Okay. That's true of Trump supporters, too. That is true.
Marc Thiessen: The majority of the people who came to Washington, who were lied to by Donald Trump, who were told that the election had been stolen, who were told that there was a possibility that it could be taken back, they believed him and they were misled. But even the majority of those people didn't go into the Capitol. And the majority of the people who supported Trump over the years have not gone into the Capitol. And those are not the people who need to be excommunicated. It is Donald Trump and his family, and the people who fed them lies who need to be excommunicated. The people who committed violence need to be prosecuted. But Trump's supporters are, in many ways, the victims here, because they were lied to, and a man came to Washington to represent them and give them voice, and instead he betrayed them.
Marc Thiessen: And so I think the Republican Party has a very, very, very tough job going forward, of finding a way to not drive away and not convict by association very good people who are concerned about our country becoming socialist, our country going down a path that is very dangerous, and who saw Donald Trump as their champion, not to throw them out with the flawed man who abused their trust.
Danielle Pletka: Amen to that. Amen to that. That's going to be the challenge, and it's a big challenge indeed.
Marc Thiessen: And we should do a whole podcast on that at some point.
Danielle Pletka: Yup. We should, for sure.
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15 Marc Thiessen: Excellent.
Danielle Pletka: Folks, you know where the compliments go. Yup, to me. Insults to Marc. Technical questions to Alexa. Suggestions as well. Thanks for listening, and take care, everyone.
Marc Thiessen: Bye.
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