RUSH: Folks, I’m gonna interrupt myself here because I’ve got Andy McCarthy on the phone. I just saw him on Fox, and I sent him a quick note asking if he had five minutes. I wanted to ask him about something that’s bugged me about this Epstein case since it started, and he got back to me. Andy, thanks much. I promise I won’t take much of your time here.
MCCARTHY: Rush, it’s a pleasure. Take whatever part of my time you like.
RUSH: Well, here we go. Now, Andy is a former prosecutor at the SDNY, Southern District New York. By now you all know the story. He was on the prosecuting team that convicted the blind sheikh back in the early nineties. The Jeffrey Epstein case. I saw you on Fox a moment ago being questioned about this, and you had limited time, and I wanted to ask you about it ’cause it’s been something that’s bothering me since this latest phase began that I don’t understand and I’m sure there’s an explanation for it.
The plea deal that gave him immunity from federal prosecution that he signed back in 2006 or 2008, how in the world can they bring him back on charges now, Andy? Are these new women? Is this something altogether new? I mean, how far does this extend, this immunity? And why is this not double jeopardy for him?
MCCARTHY: Well, I think he’s got a very strong double jeopardy argument, Rush. But I think factually what they’re hoping for is that they can find some victims that they didn’t already know about at the time of the deal. What they would really like is to find some victims outside the ambit of 2001 to 2007 because that’s the period of time that’s covered in the nonprosecution agreement. If they can find new victims outside that time, then those are new offenses and new crimes and then they don’t have the double jeopardy problem. I think if they find new victims who are just more of the same — I don’t mean to belittle the offense, but I’m talking as a legal matter —
RUSH: Right.
MCCARTHY: — more incidents of the same crimes or the same statutory offenses that they already gave him immunity for, I don’t think that’s good enough. I don’t think they can prosecute him on that. So then the other thing they have, Rush, besides that factual problem is this kind of cutesy legal argument that he only made this deal with the Southern District of Florida and that it doesn’t bind any other federal district and that this is just simply a contract matter, not really a Fifth Amendment —
RUSH: That’s kind of crazy. Federal is federal.
MCCARTHY: I think so. Now, there’s some authorities in the Second Circuit, which is where the Southern District of New York is, for the proposition that a prosecutor’s commitment in one district is not binding on another district. I think that that is very thin ice to bring a case like this on, and I also think, after looking at the Supreme Court’s decision a couple of weeks ago or few weeks ago in the Gamble case, which is the dual sovereignty, double jeopardy case, I see a lot of hostility on the court to the whole idea of bringing a second prosecution, even in a situation where it’s two separate sovereigns. Here, the Southern District of New York and the Southern District of Florida may be two different venues, but they represent the same sovereign, the United States. So I think this really is covered by double jeopardy.
RUSH: Well, that’s what fascinated me because nobody has raised that until I saw you on TV about a half an hour ago raising it. It makes all the sense in the world. In the context of a bail hearing it was supposed to be Thursday, moved to Friday, then supposed to be today. The judge has delayed it again. Epstein’s team has offered a package of $77 million as guarantee that he won’t flee. They’ve calculated, if what I read is correct, that the closest they can come to his net worth or his wealth is $500 million. So losing $77 million is not a big deal. What are the prospects in your experience that he’s gonna get bail?
MCCARTHY: I think he is going to get bail, Rush. And one of the reasons is this Fifth Amendment issue that we’re discussing. You know, in the usual case when a defendant brings the usual array of pretrial motions, they get decided by the lower court. And you don’t get to appeal those until after the case is over. So you get the pretrial motions handled in the district court, which is where the trial takes place, then you have the trial or the plea or whatever, and then you start the appeals process. Double jeopardy is different because in double jeopardy the constitutional offense is not just convicting or acquitting somebody a second time. It’s actually prosecuting somebody a second time.
RUSH: Yeah, exactly.
MCCARTHY: So you actually, in a double jeopardy claim, you get to go up to the Supreme Court before they have a chance to try you, which means if he has a colorable double jeopardy claim — and I think he does — then he gets to go to the Supreme Court before they could try him, which really elongates the pretrial period. And I think a court is gonna be very uncomfortable keeping him in custody that long.
RUSH: All right. Now, the Supreme Court, I saw you ask this question. I want to take my stab at it. I was, frankly, kind of embarrassed. The Supreme Court would not be deterred in taking the case from Epstein’s lawyers simply because of the subject matter. Just because it’s about smut doesn’t mean they would reject it. They would reject it or accept it on the legal merits, right? Not so much what this is about?
MCCARTHY: Yeah. You know, Rush, the Supreme Court takes cases involving an awful lot of monstrous people, and they don’t look at the subject matter of the case involved, I mean, except to the extent you need to look at it to decide the case. But, as far as the Supreme Court’s concerned, this is a federal crime, and Epstein is presumed innocent until they convict him. So, he has the full array of rights and they have to treat it like they would treat any other federal crime, whether it was a murder case or a fraud case or a drug case or what have you.
The fact that, you know, he may be a monstrous person, which I’m fully prepared – in fact, he’d pled guilty to some of these acts in Florida, so, you know, I’m fully prepared to say he ought to be drawn and quartered at high noon, but the fact is the Supreme Court’s gotta give him his day in court. As far as they’re concerned, it’s a federal crime and he’s presumed innocent.
RUSH: I appreciate you taking the time to call. This has been bothering me from the moment, Andy, I started hearing people say that he was toast.
MCCARTHY: Rush —
RUSH: It was jumping the gun on this and I was asking, “How can they go after him again after they gave him immunity on this?”
MCCARTHY: Rush, if you’re bothered, that’s what I’m here for.
RUSH: (laughing) Andy McCarthy, thanks very much, my man.