OPINION: This article may contain commentary which reflects the author's opinion.
Former President Donald Trump and his attorneys scored a major victory in court and it is a game changer, a formal federal prosecutor believes.
Andrew McCarthy appeared on Fox News on Monday and said that a federal judge, who granted the special master to review documents seized from Mar-a-Lago, was “potentially explosive” if it led to an executive privilege claim.
“It’s a big win for the Trump team and a potentially explosive ruling if it holds. I would imagine it’s important enough that the government will appeal this immediately,” he said on “Fox News Live.”
The government has not yet appealed but still can.
“In a nutshell, what happened here is the Justice Department assumed that Trump only had attorney-client privilege, that he did not have executive privilege, or at least to the limited extent that as a former president he maintains executive privilege, it can’t be asserted against the executive branch itself,” the former prosecutor said.
“It’s one thing for the government to have that theory, I think it actually may be a sound theory. The problem is it’s not 100% settled, so I thought it was incumbent on them to get a ruling from the court on that question before they hauled off did what they did, which was have the privilege team go through all the seized documents assuming that Trump only had attorney-client privilege and then allowing all of the potentially executive privileged documents to go to the prosecution team,” he said.
“If it turned out they are privileged, that could taint the prosecutors who reviewed them and it could also taint their investigation because they are now conducting an investigation,” he argued.
“They got these documents two weeks ago, and they have had these documents, the prosecution team has, for about a week. So they have been merrily conducting their investigation with the agents assuming all the documents were appropriate for the investigation. Now the judge is saying hold everything, he may have executive privilege,” he said.
U.S. District Judge from the Southern District of Florida Judge Aileen M. Cannon on Monday ordered that a special master be appointed to review records seized last month by the FBI during a raid at Trump’s Mar-a-Lago estate.
She ordered that an independent third-party be appointed to “review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.”
“The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney- client and/or executive privilege,” the order states.
“Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order,” it adds.
The order, though, “shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order.”
At a hearing late last week, Cannon said she would issue a written ruling on Trump’s request “in due time.”
During the hearing, Trump lawyer Jim Trusty slammed the DOJ for allegedly trying to prosecute Trump at all costs, saying the FBI could have “taken an overdue library book” and it would have “suddenly turned into a criminal investigation.”
DOJ attorney Jay Bratt argued that Trump does not have the same legal privileges to classified documents as he did when he was in office.
“He is no longer the president, and because he is not … he was unlawfully in possession of them,” Bratt said, referring to the documents the FBI seized from Mar-a-Lago.
Judge Cannon reportedly appeared skeptical of the DOJ’s arguments at times.
“What is the harm of appointing a special master,” the judge said during the hearing. “What is your articulation of harm other than the general concern that it would delay a criminal investigation?”
“She also floated the idea of letting the director of national intelligence review of the documents continue while halting the criminal investigation for a time and letting a special master review the materials. Trump’s team and the DOJ also disagreed during the hearing about the gravity of national security documents being stored at Mar-a-Lago,” Fox News reported.
“We need to take a deep breath. These are presidential records in the hands of the 45th president at a place which was used frequently for work during his presidency,” Trump attorney Christopher Kise said.