Fox News Legal Analyst Andrew McCarthy Believes Trump Will Be Prosecuted

Fox News legal analyst and former federal prosecutor Andrew McCarthy believes former President Donald Trump will be prosecuted by the Justice Department over his role in the January 6 riot at the U.S. Capitol.

McCarthy laid out the charges Trump could face on this week’s episode of The Interview.

White House aide Cassidy Hutchinson delivered bombshell testimony revealing how Trump acted during the riot in a surprise hearing from the House select committee investigating the attack.

The most damning piece of testimony from Hutchinson, McCarthy argued, was her claim that Trump demanded armed supporters be allowed into his rally at The Eclipse, before sending them to the Capitol.

Weapons carried and in some cases used by rioters included pistols, bear spray, spears, even flags. Rep. Liz Cheney played audio from police describing some “carrying AR-15s.”

“Trump was clearly aware just moments before he took the podium that you had a mob of heavily armed people,” McCarthy said.

“The critical thing he says is ‘they’re not here to hurt me,’ which implies that in his mind, he knows they’re here to hurt someone,” McCarthy continued. “And the second thing he says, which I don’t think has gotten enough attention, ‘they can come in, they can hear me, and then they can march to the Capitol.’

“So he’s very aware that you have a mob that’s armed to the teeth that he is planning to encourage to march on the Capitol. And then as the testimony ensues, we find out that he not only intended them to do that, he wanted to participate, he actually wanted to lead them down there.”

“That knowledge opens up the possibility that you could prosecute for aiding and abetting the intimidation of federal officials, which is a pretty serious crime,” he added.

The penalty under that statute, McCarthy said, “goes up to 20 years if you’re talking about people using potentially lethal, dangerous weapons.”

Another potential charge is obstruction of congressional proceedings.

“I think that theory of the prosecution is much advanced if there’s testimony that the president knew that he was essentially urging an armed mob to intimidate the Congress,” McCarthy said.

McCarthy is less convinced on one charge that has been discussed: seditious conspiracy.

McCarthy charged the last successful case of seditious conspiracy — against the perpetrators of the bombing of the World Trade Center in 1993 — when he served as chief assistant U.S. attorney in the Southern District of New York.

“I think they made a bad move going down this avenue and it would be foolish to involve Trump in it,” he said. “What it criminalizes is conspiracies in the United States to make war on the United States or oppose the government by force.”

That charge becomes complicated when the person accused of seditious conspiracy is himself the commander in chief of the United States.

This was McCarthy’s second appearance on The Interview. We last spoke in February 2021, during Trump’s impeachment over the Jan. 6 riot, and McCarthy — a conservative Republican — argued Trump committed clearly impeachable offenses. The former president was impeached but acquitted by the Senate.

“I thought that Trump should have been impeached and disqualified,” McCarthy told me.

I asked McCarthy if he thought the Justice Department would bring a prosecution against Trump in light of the new evidence presented by the Jan. 6 committee.

“I do,” McCarthy said. “I want to be clear, my saying that I think it’s likely doesn’t mean it’s a good idea.”

“Progressives want to see Trump prosecuted, and the Biden administration has shown a predisposition to give them what they want, where they can,” he explained. “This is something you could give them.”

McCarthy said that Attorney General Merrick Garland, who he has known since Garland served at the Justice Department during the Clinton administration, is a “smart guy” and an “institutionalist about the Justice Department.”

“He knows that there’s tremendous potential downsides for the Justice Department bringing a case like this,” McCarthy said. “They’re smart enough to know that unless the case is really strong, they shouldn’t bring it. But that doesn’t mean they won’t do it.”

“We’d have to see how it all played out, but I bet that they’re quite confident they could get him convicted in the District of Columbia,” he added.

Regardless of whether Trump is prosecuted, McCarthy believes one thing: “Trump can never, ever again win a national election.”

Download the full episode here, and subscribe to The Interview on Apple Podcasts or Spotify. Read more coverage of The Interview on Mediaite.