On High Noon this week: Andy McCarthy, senior fellow at National Review Institute, contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency. McCarthy served as an assistant U.S. attorney for the Southern District of New York and as a legal analyst on many of the controversies that have burst into mainstream news in the last decade.
Stepman and McCarthy discuss how a veteran of the law feels about how institutions of justice have performed in the last several years, and the collapsing trust in them.
Additionally, they spoke about the dangers of a politicized justice system, and what to do when abuses graduate from aberrations to systemic failure. Stepman and McCarthy reexamine their own presumptions about the potential dangers of the Patriot Act. Finally, they discuss the cancellation of Ilya Shapiro at Georgetown, and what it tells us about the parameters of who is allowed into the pipelines of power.
High Noon is an intellectual download featuring conversations that make possible a free society. The podcast features interesting thinkers from all parts of the political spectrum to discuss the most controversial subjects of the day in a way that hopes to advance our common American future. Hosted by Inez Stepman of Independent Women’s Forum.
TRANSCRIPT
Inez Stepman:
Welcome to High Noon, where we talk about controversial subjects with interesting people. Andy McCarthy is a senior fellow at National Review Institute. He’s an NR contributing editor. He’s the author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency. He served as an assistant U.S. attorney for the Southern District of New York.
And many of you probably know him from his podcast, as well, with Rich Lowry as well as from the many, many appearances where he goes on all kinds of places — particularly, Fox News — to explain various aspects of law that then intersect with some news story or have burst into the public consciousness in a way, and we need someone who’s a brilliant translator for various legal concepts.
But I really appreciate Andy’s work, particularly, when he was the only one who could talk me through in any meaningful way and help me to understand the long saga of Russiagate and how various American sort of intelligence agencies, what the rules were between the DOJ and between domestic law enforcement and foreign surveillance or tools that are meant to essentially prosecute America’s foreign policy abroad.
So he was invaluable as a voice, I think, through that whole saga when we were trying to understand just what was appropriate, what wasn’t appropriate, what we could believe, what we couldn’t believe, because it seemed like during that whole saga that it was so heavy on detail and background knowledge and also so heavy on the opinion side that, at least for me, it was very, very difficult to even tell where people’s spin was.
So Andy was invaluable in providing a service where I knew I could absolutely trust everything that he said; he wasn’t going to insert his opinion until he was explicitly asked to, and he was just going to talk us through what was true and what wasn’t. And that was, I think, for that whole episode, that was such an invaluable service. So that’s always how I remember you, Andy McCarthy. Welcome to High Noon.
Andy McCarthy:
Well, thanks so much, Inez. That’s very, very kind of you. And I appreciate that more than you know because a lot of what I think I know about that escapade, which there’s been a lot of new information since I wrote the book about it. But a lot of what I think I know about it was kind of based on having been wrong about things that I assumed to be the case at the beginning.
And then trying to figure out, not only why was I wrong about something that I really thought I knew well, but where did it go off the rails and what was it that caused this thing to happen that I thought could never happen, which was that the justice department and the FBI would pretextually use national security powers to conduct a criminal investigation under circumstances where they didn’t really have enough evidence to do a criminal investigation.
So if I knew things in a way that was helpful, it was only because I was wrong about them and had to try to figure out why.
Inez Stepman:
Yeah. And that’s really what I wanted to talk to you about today, because you have spent such a long time in positions where you were either inside institutions like the DOJ or as a district attorney — or as a U.S. attorney, sorry. You’ve spent so much time inside these institutions, and then also helped explain the actions of those institutions to people who don’t have that same knowledge.
And I really wanted to ask you kind of a 10,000-foot level question, which is, how do you feel about the institutions themselves now that you have seen? Because a lot of the things throughout that investigation and that whole saga, a lot of the things that you initially thought could not happen because these institutions were professional. They were institutions of the law, and not of politics.
Everyone knows that individuals have their political opinions, but I think, and correct me if I’m wrong here, you really believed that the institution itself would carry out its duties in a professional and apolitical manner. And then kind of found out, piece by piece, that, in fact, they didn’t carry out those duties in an apolitical manner. I was wondering how you feel about that generally, how that makes you think about the future of institutions of justice in this country?
Andy McCarthy:
Well, I think something important has been lost, and it really has been lost over the last 20 years or so. Easy for me to say because that just happens to track with when I left the justice department, so it must have been me leaving that changed everything, I’m sure. But actually, the reason I felt strongly about how not only things should be, but how I really think they substantially were — and I don’t want to create this into something that it’s not. I mean, there’s an ideal of how an institution’s supposed to act, and there are aberrations that happen from time to time. But the thing is, they really were aberrations up until the last 15, 20 years, in the sense that you were supposed to behave a certain way, everybody knew you were supposed to behave a certain way, and they came down on you like a ton of bricks if you didn’t.
And I was a conservative lawyer in New York. I not only worked in the U.S. attorney’s office for almost 20 years, I ran the satellite U.S. attorney’s office for the last five years that I was there. Almost all of my closest friends were liberal Democrats. It’s New York, after all. And we’re talking about people who’ve been educated at elite law schools. And yet we prosecuted Democrats, we prosecuted Republicans, we had political corruption cases against both sides.
We had people who were very opinionated politically. I’m very opinionated politically. But when you went into a courtroom, that stuff really did get checked at the door. And I’ve always thought that if you’re doing it right, the job is clinical. You have to know objectively this is what the law is. You figure out what the facts of the case are. You apply one to the other.
And if you’re doing it right, it shouldn’t matter who your prosecutor is any more than it does your chiropractor or somebody who is in some other job where you wouldn’t expect politics to infect the professional work. And I do think that that is how it worked most of the time. In fact, I have the distinct memory, I remember one of the big controversies when Clinton left office was the pardons that he did at the last minute, actually, as he was going out the door, his last day.
And I was then running the satellite U.S. attorney’s office north of Manhattan and the Bronx, the three counties each on each side of the Hudson River. So because of where we were, we had jurisdiction over the part of the investigation that was looking into whether Clinton pardoned people from the Hasidic Jewish community who were involved in this big fraud case for the benefit of Mrs. Clinton who was planning to run for the Senate.
And the reason I have such a distinct memory of it is very shortly after that all happened and once president Bush was in office, we had a big divide in the office about what to do about the case. And the thing was, I thought we should just dismiss it. That there was no case against Hillary Clinton because I thought constitutionally you couldn’t prosecute…
That if Clinton had abused the pardon power, he was subject to impeachment, but that there was no criminal prosecution on it. And then we had other people who were good friends of mine, experienced prosecutors, who were progressive Democrats who think we absolutely could investigate and potentially prosecute Mrs. Clinton over it.
So if you only knew what our political attitudes were, you would assume that I was the jihadist for going after Hillary Clinton and the other people would’ve said, “Oh, we agree with her politically. So let’s give her a pass.” And in point of fact, it was precisely the opposite that was going on. And I really do think that the reason people felt the way they felt was because this was what their vision of what the law required was.
It had nothing to do with what their political sentiments were. And it wasn’t that remarkable, because that’s the way things were. But now, I think it’s a much more common thing for the tools of government and particularly of law enforcement to be politicized so that people are not convinced because of political reasons, but because of what they see again and again and again that we have a two-tier justice system.
And that if you are perceived as an ally or a favored category of the political establishment, you get one quality of justice. And if you’re seen on the other political side, you get a much worse quality of justice. And if that happens enough times over 15 years or so, I think people come away rightly with the idea that something is very wrong.
And the reason you lose something that’s precious is because, if we don’t have a common perception that the results that come out of the criminal justice system are legitimate and even-handed, that completely undermines its credibility. And ultimately, if that goes on for too long, you lose the rule of law. And if you lose the rule of law, you lose any chance of having a flourishing free society. So it’s really important.
Inez Stepman:
Yeah. I completely agree that it’s poisonous for there to be this perception based on — and importantly perception based on — real, I guess, observing real actions of the justice system, not…. And think a lot of folks maybe in the corporate media, or in the way that they talk about this, I don’t even want to say the left, because there are voices on the left that equally mistrust the justice system, which is one of these weird horseshoe sort of effects, right?
One of the first things I ever read by you was your book about prosecuting the blind shake for the 1993 world trade center bombings, just under a decade before 9/11. And there, of course, it was very much about delineating what’s appropriate, what tools are appropriate, and what tools are really necessary to execute a foreign war in a sort of asymmetric modern context, and how the rule of law at home is not well equipped to do that.
And I think you were right. And I certainly agreed with you, at the time, that our rule of law was not well equipped. And you know that better than anybody else because you basically did the best you could with the tools that our justice system gives us to make sure to bring justice to people who had committed terrorist acts against the United States.
But there was this worry, at the time, from both the left and pieces of the right that these tools that circumvented some of the due process requirements that we take for granted — or at least we don’t take for granted maybe anymore, and that’s the problem — but that we used to take for granted at home, in order to deal with this foreign threat. There were definitely people at the time who worried these tools can definitely be used domestically if the professionalism and the sort of safeguards in these institutions against using them that way somehow dissolve.
And I guess the question I want to ask you is, why do you think that’s happened? You said over the last, maybe 10 or 15 years, you think that this has been moving from an aberration to just something that is part of the justice system. Why do you think that has happened and is continuing to happen now?
Andy McCarthy:
I think it has happened because it’s human nature and we haven’t learned from history, so we didn’t think it could happen again. But there’s a history of this in the 19… There’s a big debate now, Inez, about whether we should have domestic terrorism acts, right? Like pass a bunch of statutes that go to domestic terrorism.
And that’s at a time when the regnant political class now wants to… It’s not enough to prosecute people who riot at the Capitol, right? You have to now say that they’re insurrectionists and they’re terrorists because of what motivates them, not just the fact that they may knock down doors and destroy some property at the Capitol. And I’m not belittling what happened at the Capitol.
But what I’m saying is, it’s been rolled into a political narrative where the perceived political enemies of the ruling class are now, they have to be terrorists. It’s not enough to say that they’ve committed crimes, and we have to use all of the implements of government against them. So when did this happen before? Well, it happened in recent history in the 1960s and 1970s, into the early 1980s.
And in fact, one of the reasons that the Foreign Intelligence Surveillance Court was created in 1978 was because the government in the ’60s and ’70s abused its national security powers and treated people who were political dissenters as if they were all the same as the people who were committing rioting and other seditionist violence in the country.
And there was a recognition in our law at the time that we have to be very careful with this kind of activity domestically. Foreign terrorist organizations are in a different category because they’re not Americans and they’re a foreign element that’s trying to destroy our system and undermine it. The whole reason that you have a federal government is, or a large part of the reason you have a federal government is, to protect against that.
But when you’re dealing with domestic dissent by Americans the problem you will always have is the dissent, which is protected by the first amendment, is tied up with the violent elements. And you have to be very careful that in your exuberance to go after domestic violence, you don’t sweep in constitutionally inappropriate penalties on people who are just political dissenters. And we knew that, we learned that, on the basis of the government’s abuses of its authority in the ’60s and ’70s.
And that was the reason why, not only did they… I mean, I don’t like the FISA court, but at least I admire the intention behind it which was to say, “That we need a check on the government’s or the executive branch’s likelihood of using this power abusively. And therefore we want them to go through a court first to make sure that they’re only using these powers when it’s appropriate to use them.” There’s a lot of reason structurally why it doesn’t work, but at least the impetus behind it was sensible.
When we did the Patriot Act after 9/11, almost every clause of the Patriot Act ends with saying that constitutionally protected activity by itself is not enough to trigger the use of this surveillance technique. And all of that was derived from this experience we had in the late quarter or so of the latter half of the 20th Century, where the powers were abused. And that wasn’t the first time, that we had the same thing in the World War I era.
So there’s a long history that shows that no matter how much you know that it’s a bad idea to allow the government to have unrestricted, unreviewable use of national security powers under circumstances where they can turn it against their political foes, human nature teaches us again and again that if that situation obtains, that’s exactly what they’ll do. Right? So you move ahead to Russiagate.
And the mistake I made in Russiagate was…. What happened in Russiagate was they used the FISA authorities and other national security authorities against the political opposition of the incumbent party. Under circumstances where there was no real evidence that Trump and the people around Trump were Russian Stooges or that they were clandestine agents of Russia in the Argot of the FISA law.
So this goes back to the argument that we had, you mentioned the terrorism years in the ’90s. The big argument that we had in the ’90s was over something that was called The Wall at the time, which is like such ancient history now to people that they barely remember it, but it was a big thing in the 1990s.
And what happened was, the Clinton administration’s justice department was concerned about a hypothetical possibility — which had never occurred before, and there was no evidence that it was anywhere close to occurring — that a rogue prosecutor and rogue agents could use the government’s national security powers to conduct a criminal investigation by using the pretext of a threat to national security, under circumstances where they didn’t have enough evidence to do a criminal investigation.
And at the time — so let me just finish the thought — what they did to prevent this hypothetical thing from happening was prevent the national security investigators, which they used to call it foreign counterintelligence. That part of the FBI’s house. They were not allowed to share information with the criminal investigators and the prosecutors. And that way, you wouldn’t get the intelligence side basically steering a criminal investigation when you didn’t have enough criminal evidence.
And I thought this was crazy. And I wasn’t the only one, but we were very loud about it. And the reason we are involved at all is because my office in the Southern District of New York was doing the terrorism cases at the time. So what we said is if you prevent people from communicating with each other, people are going to die. Because what’s going to happen is you can’t put together the mosaic, as they always put it, of the intelligence.
And the left hand won’t know what the right hand is doing. And sure enough, when 9/11 happened, it turned out that the guys who were on the jihadist team that took flight 77 and crashed it into the Pentagon, they were in the West Coast of the United States for about three weeks before 9/11. The FBI knew they had gotten into the country, and the intelligence division asked the criminal division for help to find them.
And the criminal division basically said, “Based on the wall, we can’t help you.” And then three weeks later, they run the plane into the Pentagon. Right? Now, does it mean we would’ve stopped 9/11? Not necessarily. But we made it a lot more likely to happen by hamstringing ourselves. And what I was angry about at the time that we were having this discussion or this argument internally, was, let’s assume you have a rogue agent, assuming you got a bad guy who’s an agent or a prosecutor. It would be much easier to fabricate and lie about having the basis to do a criminal investigation and use those authorities, like normal wiretaps and normal criminal justice procedures. It would be much easier to lie about that than to lie about a national security angle.
Because if you want to do FISA, you have to go through a whole different rung of approvals in the justice department. So our argument was, what you’re saying, not only has never happened before, it would be irrational because it would be harder to pull this off using FISA pretextually than it would be to lie about the basis of a criminal investigation. And I was adamant about that.
I really argued it very ardently. So what happens with Trump? They do exactly what I said could not be done, right? They have a pretext of a national security threat. They don’t have criminal evidence on him. And what they want to do is sit on him investigatively because they figure he is a bad guy and, eventually, the evidence will catch up with their predisposition that he’s a bad guy, right?
If we just sit on him long enough. So if they had done this by criminal justice procedures… The thing with criminal justice procedures is there’s a check on bad behavior because everybody, even though I can go to a judge and get a warrant without having to give anybody notice, everybody knows that once the case is indicted there’s going to be discovery.
And all this stuff is going to be made known to the defense lawyers. And if I’ve lied to get my surveillance authority, I’m going to be in a lot of trouble, and the case is probably going to collapse. Whereas, in the national security side, there’s no defense lawyers. There’s never any discovery.
The only due process an American ever gets is this discussion between the justice department and the FBI on the one hand, and the FISA judge on the other hand. And then everything goes into a black box. And there’s never any discovery. So there’s obviously a temptation on the part of the justice department and the FBI to lie because, if they can get it past the judge, they’re home free. Right?
They have as much surveillance authority as they want. So why didn’t I think it could happen? Because there are these rungs of supervision. The attorney general has to sign off on it. The FBI has to sign off on it. There’s high-level people looking at it. There’s the FBI’s council looking at it. The justice department has a division, the national security division that looks at it. So there were enough safeguards in place.
You would think that, if you had a rogue agent, the rogue agent wouldn’t be able to get it past all those rungs of supervision. The thing I didn’t factor in that I should have factored in was what happens when the supervisors decide to do the case? What happens when it’s not a rogue agent? What happens if the top levels of the FBI and the justice department decide to use their national security powers pretextually to do an investigation?
If the supervisors run with it, there’s no one there to tell them no. So what ended up happening, I think, in Russiagate was the people at the top rungs of the justice department and the FBI were invested in the idea that Trump was a bad guy, and he had some kind of corrupted relationship with Russia. And if just sat on it long enough, the evidence would catch up with what they believed.
And the normal things that would stop a low-level agent from doing something like that were ineffective because it was being done at the highest level. So all your predispositions about what it is that prevents bad behavior were thrown out the window. And if you don’t have those safeguards in, human nature takes over. They did it because they were able to do it. And there was nobody there to tell them no. And that’s happened before, and as long as you don’t have enough safeguards in place, it’ll happen again.
Inez Stepman:
What you’re really talking about there is not, as you say, a rogue agent or even individual human nature. Because I think the foundations of our system are very much set up with the idea that human nature will abuse power, right? That anybody with a certain amount of power will abuse it and, therefore, as you say, there are plenty of safeguards, checks and balances, there’s, even in this context, there’s the FISA court, which is supposed to provide that check and balance.
At least somebody that doesn’t have a direct interest in it to provide that counterbalance. I think what is so difficult about, especially in the context of the law, is really the same thing that is happening to our other institutions. Which is the institution itself, not just at the highest levels because those individuals are corrupt, but the schools, the law schools that all of these folks went to, all of their professional contacts; everybody that works in their world has essentially a set of opinions that are no longer traded out. When you were talking about, let’s say, when you were working alongside Democrats. There wasn’t yet that completely uniform set of opinions that are frankly, at this point, shared between Republicans and Democrats who work in the same sort of managerial ruling class.
And that’s really, I think, what is going on here. It’s that, finally, what has infected every other institution, from the universities and K-12 system, all the way to obviously Hollywood and all the other agencies, where if you look at SCC documents, right — sorry, FEC documents — you see that 95% of federal donations or donations from federal employees in the 2016 campaign went to Hillary Clinton.
That’s, at that point, everybody you know, and everyone who has the credentials to work in this justice system largely agrees with each other that, as you pointed out, Donald Trump is basically a bad guy, and if we bend the rules here a little bit, he will eventually feed us what we know to be true because of all of these background assumptions.
So how does one rescue the rule of law from what has infected, apparently, every institution including the rule of law? But I agree with you that it’s more concerning when you’re talking about the rule of law and you’re talking about the justice department than when you’re talking about, say, the EPA.
Andy McCarthy:
Yeah. See, I think that you can survive a situation where the preponderant part of the ruling class is on one political side, as long as everybody agrees and it’s universally accepted that there’s a difference between our disagreements philosophically and when we use the law in a punitive way. So it doesn’t matter, if I disagree with somebody and I think the person’s a bad person and all that stuff, that’s one thing.
If it becomes a situation where I now think your particular set of attitudes are so off the charts, that I should be able to use the law to marginalize it and to punish it, even if there’s no active law violation, just because of how you think, that gives me carte blanche to use the law against you. That’s a big problem. And I think that the thing that’s gone off the rails here is precisely that.
That the people now think, at least people who are in the bipartisan progressive ruling class in Washington, it’s become a, and it’s not just in Washington, but it’s mainly in Washington. It’s kind of become elementary, even though I don’t think they would, maybe they may be at the point where they’d say this out loud now.
But I think it’s now become a conceit that if people have the wrong set of attitudes, it’s okay to use the law, to weaponize the law in a way to marginalize and punish them, because you’re punishing an attitude that’s just off the charts. And for this kind of a system to work, people really do have to believe in free speech and the free exchange of ideas, even obnoxious ones.
And we had a very strong culture up until very recently, that there was such a thing as the freedom of speech. It’s interesting, when people look at the first amendment, they always say, “What does freedom mean? And what does speech mean?” And actually, the most important word in that clause may be “the.” Because it doesn’t — the Constitution first amendment doesn’t give you freedom of speech, it gives you the freedom of speech.
And the reason I think it’s referred to that way is, when it was adopted, it was understood that there were certain categories of speech that did not get protection. So even though it was called freedom of speech, if you engaged in fighting words or if you engaged in immortality, pornography, there were six or seven categories that were well-known that you were allowed to regulate.
There were time, place, and manner restrictions that were well-known and you were allowed to regulate. And everybody understood that there were these exceptions from freedom of speech. But other than that, you had a robust freedom of speech in a free society. And the most important of all those possible categories of speech was political speech, that that had to be protected no matter what.
And therefore, no matter how put off you were by something someone said or some position they had or some political philosophy that they believed in, that basically got complete immunity, to the point that, in the 1950s and ’60s, the Supreme Court began to draw a distinction between the communist objective to overthrow the United States, including violently overthrow the United States, which was still verboten and what they called basically the academic presentation of the imperative of overthrowing the United States even violently. So they were so concerned about the prospect of criminalizing speech that they drew these fine distinctions, even to the benefit of people who wanted to destroy the country, because it was that important to protect the exchange of political ideas, even obnoxious ones.
And we’ve lost that. So now you have the people who are in power who think that their political enemies are not only wrong, their ideas are dangerous and must be criminalized. And they believe that they are at liberty to use the processes and powers of not only the national security laws, but the criminal laws themselves to carry that mission out.
And if it turns out that that means that we lose another important rubric or element of our constitutional system that we can’t afford to lose — which is equal protection under the law — if that goes by the wayside with free speech, that’s okay too because this is a battle between good and evil and the virtuous must triumph. And what they don’t seem to grasp is that the virtuous won’t always be in control.
At some point, the other side is going to be in control. And if you’ve destroyed your procedural and constitutional protections from the abuse of government power, then when the government power is in the hands of the people that you’re so worried about, which will eventually happen, you’ll have no defense. But that doesn’t seem to bother them.
Inez Stepman:
Well, I mean, I think it may not bother them because they’ve drawn parameters already, mentally, around who is allowed to be in power. And I think that’s what was so, I was no great Donald Trump fan, and especially in 2016, but I think that was really a bright line for me, when we started to see unelected agency bureaucrats and people who are charged with carrying out and executing the law, not with making it, basically, with all the cries about democracy. Right?
They really have, I think, mentally, they’ve rejected the concept that democracy is allowed to spit out an answer that’s outside of their parameters. They have certain parameters and they’re mistaking their shared assumptions — which are really only shared by a particular class of people — they’re mistaking that for liberal democracy itself and therefore are willing to do all kinds of things, just fundamentally, thwart the will of the people in a way that really breaks the contract between voters and their government. But there’s this one category, right, which is, essentially, we can put it in the bucket of over-prosecution, where if you are disfavored by the ruling class or by this regime, then you are more likely even to the point of bending or even breaking these very fundamental rules or going around some of the safeguards that are intended to protect people’s due process and their liberty.
I would also put, for example, the National School Board Association memo in this category, trying to apply the term domestic terrorists either to rioters on the Capitol — and, like you, I have no sympathy for anybody who broke the law, and I think they should be prosecuted — but trying to apply that domestic terrorism label so then all these tools are available to them.
They’re also trying to apply it to parents who are merely participating in the democratic process because they’re upset about what their children are learning in public schools. But then we have this flip side of the problem, which is the under-prosecution problem because of an ideology that says that I really don’t think I can improve on Reagan’s formulation here, right?
Every time a crime is committed, society must be at fault. And so we have this new crop of DA’s in Philadelphia, in San Francisco, now in New York with this Alvin Bragg memo. Now it’s called day one memo, I guess.
The day one memo where he essentially says, “We aren’t going to prosecute completely apolitical crimes, but up to violent crimes including mugging somebody, including serious theft. We’re not going to prosecute on the assumption that actually the reason these crimes are taking place is some societal problem, whether it’s systemic racism or poverty or whatever large-scale problem.”
This also completely erodes people’s faith in the rule of law, in a different way. And what I worry about, and I wonder where you think this train is going in terms of, and you have an excellent article and National Review that I recommend people read about why it really is an abandonment of their position as executors of the law, as opposed to writing it in the same way that it’s inappropriate for bureaucrats to thwart, essentially, the results of an election, it’s inappropriate for officers of the law to decide that they’re rewriting the law, essentially, to make some of these crimes functionally legal. Where do you think that train is going? And how do you anticipate that people will respond when they start to realize that, in fact, they can’t rely on the justices? Not only can they not rely on the justices to treat them fairly, if they’re in the disfavored group.
But they can’t rely on the justice system to do its fundamental job, which is to prevent people from murdering each other and then making sure that justice is served, that when people do injure others or steal from their neighbors, that they are punished by the law and not by, let’s say, the mafia or a gang of neighbors who are angry about it, right?
Andy McCarthy:
Well, that stark choice, the bad outcome is the easiest one to describe, right? Because if you do destroy the rule of law, which that kind of prosecutorial power, if that becomes the way that it’s done, it won’t be done for very long because you will destroy the rule of law, and then you’re left with the rule of the law of the jungle, which is not a free society. It’s not a prosperous society. So I don’t mean to be hysterical about this, but if you lose the rule of law, you lose everything. So we have to start from the premise that the rule of law will not be lost, but what do we have to do to reclaim it? And the problem with, I think, just to unfold this a little bit, hard progressives are not looking to thrive under the constitution.
They want to supplant the constitution, and they have a different vision of society. And I think, when you try to pin them down about exactly what that vision is, they’re not very clear on it. But they are clear on the idea that the society we have has to be, they call it change or hope, whatever, but they don’t want to live in this system. And they think it’s an illegitimate system from its creation. They have a lot of problems with the constitution as it’s written.
They don’t accept the idea of equal justice under the law. So if you start from that premise, then now let’s look at what’s happened with progressive prosecutors. This was actually an ingenious scheme by the hard left, and particularly the money streams behind the hard left. Everybody always talks about George Soros, and he’s certainly involved in it, but to me — he’s like the big boogieman. Every time something’s wrong, we say George Soros. There’s a lot more than George Soros going on here. There are big streams of funding in the hard left. And what they realize, especially in these blue municipalities where it’s one-party governance, the district attorney is an elected position in most cities and counties. And traditionally, these were like five-figure campaigns because they’re a one-party thing, so if you get the party’s nomination, that was the end of it, right; you were going to be the district attorney. So what the left realized was if they overwhelm these races with funding — if you take something that’s like, 60, 70,000 bucks would be a big campaign number — and you flood three or $400,000 or more into it, you can get your guy elected as district attorney. They tend to be low-turnout elections. And if you spend enough resources on them, you will get your person elected.
And that was what the scheme was at the beginning. This has been going on for over a decade now. And what the left realized here is it’s great to have judges, it’s great to have lawmakers. But lawmakers can only enact law, they can’t enforce it. And judges can only deal with the cases that are in front of them. And even with respect to those cases, they don’t have any power to enforce their injunctions.
They can just rule. Whereas executive power in this system is real power because you decide who gets prosecuted and who doesn’t. You decide which laws get enforced and which don’t. And you become enough of an authority figure, if no one stops you, that you can mold the laws regardless of how they’re written into what you would prefer them to be, by the way that you enforce them.
So they realized that if you want to really move the society in the direction that you want to go, prosecutorial executive power, but in this context, prosecutorial power is the thing to have. And what ends up happening is, under the rubric of prosecutorial discretion — which they have completely distorted the meaning of — they have taken to themselves a power to not only decide which laws get enforced, but to manipulate the laws that they do enforce so they’re more to their liking. So just to be more concrete about it, in a lot of places the biggest crime problem in the cities is gangs. Gangs are responsible for most of the gun crime that goes on, for most of the drug crime that goes on, for a lot of the extortion and violent crime that goes on. But the left is captured by this idea of disparate impact.
This whole theory which says that, if you are arresting in prosecuting people in a manner, such that the number of them that you are investigating and prosecuting is over-representative of them as a matter of their percentage of the population, that the reason that you’re doing that must be that you are racially prejudice. So in other words, if black men are prosecuted for 30 or 40% of the crimes, it can’t be that they’re committing crimes at a higher rate, it must be that you are racist and the police are racist and that’s the reason you have this disparity. And we know that’s nonsense because crime gets reported. And it’s reported by victims. And victims identify who the criminals are. So we know on the basis of victim reporting, because not only are we disproportionately, as a matter of population, prosecuting black men, the victims of crime are disproportionately black communities and they are the ones who are identifying the people who are involved in the crime. So in other words, we are not prosecuting a high number of a particular race because the cops have it in for black guys. So like, “Today we’re going to go out and hunt black guys.” That’s not how crime gets reported. What happens is a crime gets reported. They tell the police, “Here’s a description of who did it.” And then the police go.
It’s not like the police are out generating the statistics, but you can’t make that argument. You talked, Inez, about things you’re now allowed to believe and you’re allowed to say, right? This is a fact that you’re not allowed to say anymore, that the reason that we have a high number of people from one particular community or one particular demographic that are overrepresented in our prosecutions is because they’re offending at a higher level. You’re not allowed to say that.
So we’re supposed to continue on along this fantasy, that the reason the numbers are what they are is that the system is biased, that we have systemic racism. Because when you ask them, “Well, give me a particular instance of what a judge has done or what a particular precinct has done that’s racist,” what you get is a bunch of hemming and hawing. And that’s because, at bottom… I have to laugh at this because I’ve been a lawyer for so long.
The criminal justice system, other than maybe college professors, the criminal justice system and the legal profession are the most self a validly progressive profession among all the professions that we have in America. And the thought that they would run a system — and they do run the criminal justice system — the thought that they would run a system that is systemically racist is about as ridiculous as you can imagine.
And those of us who’ve actually been in the system, what you find actually, most of the time is the opposite. What you find is that there’s a lot of fact-pleading that goes on in particular prosecutions, which is specifically designed to make sure that the statute books’ worst punishments do not come down on the people who commit crimes that would trigger those punishments.
Usually, it’s not like you’re going out of your way to get people. It’s like, you’re going out of your way to not get people most of the time. So what happens when these progressive prosecutors get in, though, is with gang crime, they say, “Well, the legislature has enacted these gang statutes, that when we apply them to the crimes where they factually are relevant, they will increase the sentence of people who are involved to keep them off the streets.” We’re not going to prosecute those anymore because we think that they have a disparate impact on minorities in our community.
So what they do is they go through the statute books, and they decide “we’re not going to prosecute these laws that are the laws that have been enacted by the people’s representatives because we think that they have a racist impact. And therefore they’re illegitimate and we’re not going to prosecute them.” Now, that is not the prosecutor’s job.
The prosecutor’s job, just like a judge’s job, is to apply the law as Congress has written it. And even if the prosecutor… When I was a prosecutor, there’s a lot of things I didn’t like about federal law enforcement. But the gig is, if Congress passes the law, you have to enforce the law as Congress has passed it.
And instead, what they say, under prosecutorial discretion, they don’t have to do that. Now, prosecutorial discretion is nothing more than a common-sense resource allocation doctrine that says, basically, there is more crime committed than we have resources to enforce the law.
So you have to pick, since you have finite resources and lots of crime, you have to target your criminal resources so the public gets the best bang for its enforcement buck. So for example, when I was a federal prosecutor, we didn’t do marijuana crimes. And the reason we didn’t do them is because the district attorney’s office did them.
In other words, the feds in the state had concurrent jurisdiction over all narcotic crimes. But the best division of labor was to let us — because we could cover international and interstate — let us do the big importation and distribution interstate network cases, and let the locals do the low-level distribution cases, and particularly in marijuana. We weren’t saying that marijuana was not a crime, and we weren’t getting involved in the philosophical question of, should the feds be doing, or should narcotics use be criminalized? Not our job, right? That’s for Congress. What we were doing was coming up with an efficient way so that you could target your prosecutorial resources in the places where you would get the best enforcement benefit for the public.
We weren’t saying that the crimes that we weren’t prosecuting weren’t crimes. We weren’t using our prosecutorial discretion power to, in effect, repeal congressional statute so the things that the people’s representatives said were criminal, we prosecutors were now deciding we’re not criminal anymore.
And what these progressive prosecutors are doing is that they’re not doing what a normal prosecutor does, which is you look at every case individually and you decide based on the offense conduct and the offender, whether the case is worth going forward or not. What they’re saying is entire categories of crime, they’re not going to prosecute.
And entire statutes that Congress has enacted in order to address problems like gang violence, they’re not going to prosecute. And they’re not saying, we can’t do it because we’re trying to target our resources more efficiently. They’re saying we can’t do it because these crimes, these statutes that the people’s representatives have enacted are illegitimate and racist. And that’s not prosecutorial discretion. That’s just ideology.
Inez Stepman:
More precisely, unelected ideological decisions.
Andy McCarthy:
Well, no. The distinct DA’s are elected.
Inez Stepman:
They are, I guess. But not elected for this purpose, which is —
Andy McCarthy:
No. Exactly right.
Inez Stepman:
— a really important distinction you make in this column, that they’re elected, but they’re elected to enforce the laws that the legislature creates. And so there’s an important division of power problem there. You mentioned that the legal profession as a whole is overwhelmingly progressive.
And I would be remiss if I let you go without touching on a case that — full disclosure, Ilya Shapiro, I consider him a friend. I think he’s a great guy. But he is now at the center of this controversy in Georgetown Law School, where he was about to begin a post in their constitutional center. And it looks like, as the case stands right now on — we’re recording on Monday — the Dean has already sent out an email condemning his tweet, which I’ll read in a moment, and telling the law school community that it’s contrary to the values of the law school community. I hope it doesn’t go this way, but it seems unlikely that this won’t result in him being fired at some point, or at least an attempt to fire him. The black student union within the law school is also calling for his firing.
And I’m going to read his tweet now in full here, just so we know, since this is about parsing words: “Objectively best pick for Biden is Sri Srinivasan, who is a solid progressive, and very smart.” Shapiro tweeted. Okay. “Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into latest intersectionality hierarchy, so we’ll get lesser black woman. Thank heaven for small favors.”
To me, it’s incredibly clear what this actually is saying, and I’m actually very frustrated that so many people in the legal world are pretending they don’t understand what that tweet is saying. I agree with Ilya himself, that it’s somewhat inartfully phrased, but he’s very clearly saying this one person is by far the best pick, if I were progressive, I would say this person is the best pick for the Supreme Court. He is number one. Unfortunately, we’re going to get somebody who’s at best ranked number two or below because the category black woman has already been advanced by the president, and therefore he’s not considering this other guy who is not a black woman, who is the best. It’s kind of a simple logical structure of this tweet.
One guy’s the best, therefore everyone else is lesser. But people got very angry at the three words “lesser black woman” put next to each other and have taken that completely out of context, in my opinion, in a misleading way. But nevertheless, we now have this whole furor on campus where Ilya is condemned as a racist and somebody who’s unable to teach at Georgetown Law.
We’ll see what the administration does with that. But do you have any comment on what this says about whether or not the legal profession and law schools and the entire credentialing system for lawyers… I mean, it seems to me this is all connected, right? If everybody in the justice department comes through a law school in which somebody, a libertarian like Ilya Shapiro cannot teach, it seems to me that that has implications about everything that we’ve talked about for the last hour about how you’re going to have certain shared assumptions among everybody who is working in these jobs and is actually implementing the rule of law. So do you have any comment on the specific episode with Ilya?
And then what do you think the fact that Georgetown Law School seems unable to tolerate the views of a very — I would call him aggressively, in certain ways, anti-partisan — libertarian law professor. What does it say about our legal system, that his views are intolerable in one of our best law schools?
Andy McCarthy:
Yeah. Well, it’s a catastrophe. Yeah. I agree with your interpretation of Ilya’s post. Look, he’s apologized because it was not, as he said, it was not artfully framed. But I don’t even think most of the defense that I have read about Ilya — and Dan McLaughlin wrote a great piece for us on National Review about this, which I wholeheartedly endorse — but a lot of the defensive of Ilya has been, look at Ilya’s track record, and you can tell that this is not a racist thing.
He’s making exact, as you described, a comparative between the best candidate and whoever would be the second-best candidate. But I don’t think it should have been necessary to go to Ilya’s record to make that point. I mean, it seemed to me, if you read the whole thing, rather than mine out the clumsy phrase he used in one part of the post, it’s perfectly obvious what he meant.
And I also think that if you stacked up what he carefully said in what even he ultimately says was clumsy phrasing, against some of the stuff that gets put out in academic institutions about originalists, about Clarence Thomas, about, I mean, you name it, right? It’s not even in the same category. So I think we’re in a really sorry state with the universities. And it’s really, for the reasons that you articulated, it’s very important that somebody like Ilya Shapiro teach at a place like Georgetown.
Because otherwise, what you’re doing is you’re minting a whole generation of lawyers in not only a particular ideology, but in the conviction that the law is ideological. That it’s basically not the rule of law undergirding of a flourishing free society, it is instead a tool or a weapon to be used in an ideological fashion, either to accomplish things you want to accomplish politically or to destroy people who think differently from the way that you think.
And what troubles me the most about this — now I’m going to talk about Ilya’s career, but I think for the making of this point it’s important. If you look at his career, he’s a, maybe politically, slightly right-of-center. But he’s mainly a libertarian constitutional legal scholar who has very mainstream ideas about the idea that this is what the constitution says and we need to enforce the constitution as it appears, as it was enacted. That shouldn’t be heresy at a law school. I mean, you could have a situation where it doesn’t offend me that you have some progressive scholars on the faculty who say, “No, no, no, the constitution is organic. We’re evolving just like Justice Kennedy said we’re evolving, where we have this concept of liberty, it’s ever expanding, and our concept of meaning of the universe of, what it does, Scalia called it, ‘the sweet-mystery-of-life passage in Casey.’” You have some people who have an idea about the constitution that became mainstream in the 20th Century, that it’s an organic document. It’s evolving.
It’s not a crazy philosophy, in the sense that — like if you look at the Eighth Amendment jurisprudence, there’s an awful lot that we would have to say was constitutional in the way of punishment at the time the constitution was adopted, that we would look at now as close to being barbaric, right? So it’s not like the progressives are crazy in this idea. People do evolve, their ideas evolve, the times change.
Now my view, and I imagine Ilya’s view — I haven’t talked to him about this, but I imagine his view would be, “Yes, that’s why the framers put in the constitution a way to amend the constitution: so that when the times change the constitution can change with it.” But my point is that even if I had my ideal of what a law school should look like, I wouldn’t be trying to drive the progressives out because I think that their constitutional philosophy is wrong.
I think the university, including the law school, is supposed to be a place that’s sacrosanct in the sense of, it’s the place for these debates to take place. And we’re not talking about crazy ideas here. We’re talking about mainstream schools of constitutional interpretation.
And if one side, namely the progressives, because they’re preponderant in this institution, now thinks that they should exploit that preponderance so that they can drive out the people who think differently than they do, then these aren’t universities anymore. What they are is something that’s much more sinister. And they shouldn’t be able to credential anybody because they’re not fulfilling the mission that the university is for.
So to drive Ilya out on a pretext, which they all know is totally dishonest if they read what he wrote in a straightforward way and allow for the fact that he, in goodwill, apologized because he phrased something clumsily; if they nevertheless drive him out on a lie, because he sees constitutional interpretation and the law differently from how they see it, then these are institutions that aren’t worth happening anymore.
Inez Stepman:
Yeah. I mean, I think that’s really the bottom line. This is how the… And I have used the framing of class more than I ever have in my intellectual life in the last few years because it didn’t seem to me to be the most relevant frame of looking at things, even four or five years ago.
But I find I’m unable to avoid framing things in that way, that it seems like actually the accurate way of talking about this is, their mission isn’t that of a university anymore. Their mission is to credential the ruling class and the people who will then go on to inhabit all of these institutions, legal institutions that are supposed to be entrusted with upholding and enforcing the rule of law.
They’re going into those institutions and they’re being shaped, in law schools like Georgetown, that in order to participate in any of that credentialing, you have to first swear allegiance to this quite narrow set of ideological opinions that are not shared by the vast majority of Americans.
And indeed, in this case, a poll just came out that showed that 72% of Americans think that Biden should be looking at all the possible candidates and not pre-selecting somebody by race and sex, as he has already done. So Ilya’s view is not only in the mainstream, it’s the majority.
And yet it’s completely outside of those boundaries that what is frankly a ruling class has set. And has made it so that nobody can make it into that class without being credentialed by an institution like Georgetown Law that no longer is able to accept anybody that doesn’t fall into that narrow spectrum of ideological beliefs.
And I think that that’s really, by far, the most damaging thing. And it’s really been wonderful to have you on High Noon, Andy McCarthy, to give us that perspective from being inside these institutions and then interpreting their actions to other people. I really agree with you that we’re in a very difficult, bumpy time for the history of our republic, if the rule of law starts to be untrustworthy and not trusted by the majority of Americans.
Andy McCarthy:
Well, I couldn’t agree with that more. And it was delightful to be able to rant about it for an hour.
Inez Stepman:
Thank you very much. And thank you to our listeners. High Noon with Inez Stepman is a production of the Independent Women’s Forum. As always, you can send questions and comments to [email protected]. Please help us out by hitting the subscribe button and leaving us a comment or a review on Apple Podcast, Acast, Google Play, YouTube, or iwf.org. Be brave. We’ll see you next time on High Noon.