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Andy McCarthy with Levin: Mueller Should Not Be Permitted to Subpoena Trump, Nor Even Ask for Interview

Michael Morris
By Michael Morris | May 3, 2018 | 3:01 PM EDT

Former federal prosecutor Andrew McCarthy (left) and nationally syndicated radio talk show host and American lawyer Mark Levin (right) (Screenshots)

On his nationally syndicated radio talk show Wednesday, host Mark Levin interviewed former federal prosecutor Andrew McCarthy on the topic of Special Counsel Robert Mueller’s threat to subpoena and interview President Donald J. Trump, McCarthy suggesting that Mueller should not be permitted to subpoena Trump, nor even ask for an interview.

“Well, I don’t think, Mark, that not only should a prosecutor not be permitted to subpoena a president by a court, I don’t think the Justice Department should allow a president to be even asked voluntarily to submit to an interview in the absence of evidence that there’s a serious crime that the president is complicit in and indication that the only way that you could get the evidence that the prosecutor can show is vital to the case is through the president,” stated former federal prosecutor Andy McCarthy on Mark Levin’s show. “So, you know, you’d have to be in like a Nixon tape situation, where you have evidence of a crime that the president’s complicit in, and the only way you can get the tape is through the president, through the White House.”

Mark Levin’s interview of Andy McCarthy came after reports suggested that “Mueller told President Trump’s legal team that he could subpoena the president to appear before a grand jury if Trump refuses an interview with Mueller’s team,” according to FOX News. Levin wanted to “dig in” on Andy McCarthy’s piece in National Review Online titled, “Mueller’s Questions for Trump Show the Folly of Special-Counsel Appointments,” where he and McCarthy agree on the Mueller situation, also citing his comments on his Facebook page Wednesday morning, as reported by CNSNews.com, where Levin recalled the “DOJ policy and position, asserted in two long-established opinions, that a sitting president cannot be indicted.”

Below is a transcript of Levin and McCarthy’s remarks from Levin’s show Wednesday:

Mark Levin: “Andy McCarthy, former federal prosecutor and current guru, how are you, sir?”

Andrew McCarthy: “I’m doing great, Mark. How are you?”

Levin: “Good, good. I want to dig in on your article, today, in the areas where we largely agree. And the premise of your piece here is, ‘Look, I’ve looked at these 49 subject areas, and the Department of Justice needs to step in and stop this.’ Go ahead and explain what you mean.”

McCarthy: ““Well, I don’t think, Mark, that not only should a prosecutor not be permitted to subpoena a president by a court, I don’t think the Justice Department should allow a president to be even asked voluntarily to submit to an interview in the absence of evidence that there’s a serious crime that the president is complicit in and indication that the only way that you could get the evidence that the prosecutor can show is vital to the case is through the president. So, you know, you’d have to be in like a Nixon tape situation, where you have evidence of a crime that the president’s complicit in, and the only way you can get the tape is through the president, through the White House.

Levin: “Now, let’s stop right there. So, the people need to know the Nixon Supreme Court case. That’s called, as you would call, a subpoena duces tecum, right?”

McCarthy: “Right. Right.”

Levin: “And that means that you’re providing documents, you’re providing evidence because you’re the only one who can, but you don’t have to personally appear in front of the grand jury for the purpose of taking questions. That’s a whole different matter.”

McCarthy: “That’s correct. I mean, sometimes you wish to subpoena duces tecum under circumstances where the witness is expect both to testify and bring along tangible evidence.”

Levin: “And that was not the Nixon case?”

McCarthy: “That was not the Nixon case. Correct.

“But my point is: The president has the most significant job not just in our government, probably in the world, and a prosecutor should not be able to interfere with the president’s performance of his duties, which the country depends on for governance for security, for everything we rely on a president for. A prosecutor should not be able to interfere with that because he thinks the president has information that would be relevant and interesting to his investigation because if that’s where you’re going to draw the line, there’s no, there’s no case that you could even think of that the president might not have some relevant things to say about.

“You get to bother a president at most when you have indication that the president is guilty of some kind of serious crime, and you actually need something from the president to prove the crime. I think, without that, you don’t even get into the ballpark.”

Levin: “And even there, Andy McCarthy, in their own October 2000 memorandum, which has not been altered …”

McCarthy: “Right.”

Levin: “… even there they say, ‘Look, there’s no question,’ – and I agree with this – they say, ‘the president can be impeached, removed, and then prosecuted …”

McCarthy: “Right.”

Levin: “‘… if the statute of limitations hasn’t run. But otherwise, he can’t because the ultimate purpose of a trial is to get a conviction and to put somebody in prison.’”

McCarthy: “Right.”

Levin: “And they run through that. They say, ‘Well, the president can’t be put in prison. A prosecutor can’t have this kind of power over one branch of the government.

“The founders, as you know, the framers created impeachment if they want to approach it that way. That’s the body politic, the elected representatives. And they go through all these explanations and so forth.

“So, my question to you here – and you wrote a brilliant piece today; you always do…”

McCarthy: “ Thank you.”

Levin: “This one’s particularly good.

“My question to you is this: I’m not aware that the Department of Justice has rejected its past position. Have you seen anything to that affect?”

McCarthy: “I have not, Mark. And I listened to your opening remarks, and I couldn’t agree more. The— You know, I think you and I, if we put our minds to it, could come up with an argument – I’ve tried to, I’ve made this argument in the past, over the years, myself – to the proposition that there could be a constitutional argument that you could indict a president, but a president couldn’t be tried until he was out of office.

“And you know, we could argue that back and forth, but if you’re in the Justice Department, you are bound by the opinions of the office of legal counsel until they – unless or until they retract them. And you’re quite right. I’ve never heard of those opinions being retracted.”

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