'Prisons are filled with maladroit miscreants': Legal experts slam ex-prosecutor’s 'weird defense' of Trump

01 August 2022

In an op-ed published by The Hill on July 26, Andrew C. McCarthy — a former federal prosecutor and contributing editor for the conservative National Review — addressed the work of the January 6 select committee. McCarthy, in his op-ed, was critical of former President Donald Trump’s “Stop the Steal” activities but argued that it would be a “grave error to charge this misconduct criminally” because the committee hasn’t demonstrated a “clear intent to resort to violence” on Trump’s part. Part of McCarthy’s argument is that Trump’s post-2020 election activities were too bumbling to be a criminal conspiracy — an argument that legal expert Benjamin Wittes, founder of the Lawfare website, vehemently disagrees with.

On August 1, Fox News’ Brit Hume tweeted McCarthy’s op-ed, quoting the National Review editor as saying, that “contrary to the committee’s hyperbole…. Trump’s half-baked schemes had no chance of success. Far from being pushed to the brink, our Constitution easily prevailed.”

Wittes, in response to Hume’s tweet, posted, “This is the weirdest defense: My plot to overthrow the constitutional order was so stupid that it can’t be considered a plot at all — even though state officials felt terrorized, the Justice Department nearly collapsed, the Capitol got sacked, and the Veep’s life was threatened.”

Wittes, unlike McCarthy, clearly believes that the January 6 committee has built a very damning case against Trump.

Barbara McQuade, a University of Michigan law professor and former federal prosecutor who often appears on MSNBC, saw Witttes’ August 1 tweet and posted, “This is a classic defense — the defendants were too bumbling to have committed this crime. They perhaps were too bumbling to succeed, but that does not make them any less dangerous.”

In response to Hume’s tweet, Twitter user Amy Rovin, @MomRovin, retweeted a June 20 post by attorney George Conway — a Never Trump conservative who has been one of Trump’s most scathing critics on the right but ironically, is married to former Trump adviser Kellyanne Conway. George Conway posted, “There is nothing in the statute books or in the DOJ prosecution manual or in criminal law generally that says incompetent and unsuccessful criminal conspiracies don't get prosecuted. The nation's prisons are filled with maladroit miscreants.” And former federal prosecutor Joyce White Vance — who, like McQuade, is often featured as a legal analyst on MSNBC — saw Conway’s January 6-related posts and noted, “I’ve prosecuted many an incompetent conspiracy. You don’t get a pass for that.”

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