Andrew McCarthy weighs in on ‘explosive’ ruling for special master: ‘It’s a big win for the Trump team’

In a reported “big win” for Donald Trump, and after days of speculation regarding the matter, U.S. District Judge for the Southern District of Florida Judge Aileen M. Cannon ordered that a special master be appointed in the Trump Mar-a-Lago search case.

Even mainstream media such as CNN are reporting this news as “a significant win” for the Trump legal team and former federal prosecutor Andrew McCarthy saw the judge’s order as “a potentially explosive ruling.”

(Video: Fox News)

“It’s a big win for the Trump team and it’s a potentially explosive ruling if it holds. I would imagine it’s important enough that the government will appeal this immediately,” McCarthy said on “Fox News Live” Monday.

A special master is an independent party appointed by a court to carry out some action on its behalf. In this case, that action will be to “review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege.”

Judge Cannon’s order also temporarily halts a review by an internal Department of Justice team that had been examining the documents regarding these issues.

McCarthy reviewed the Trump team’s argument about attorney-client privilege and how the Department of Justice has been handling the documents.

“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,” McCarthy, a Fox News contributor, 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 explained.

“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,” McCarthy noted.

“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,” he concluded. “Now the judge is saying hold everything, he may have executive privilege.”

Since the raid, a legal battle has raged between Trump’s attorneys and the Department of Justice, with DOJ saying that their internal review is sufficient, while Trump’s attorney Christopher Kise argued in a hearing last Thursday, “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.”

The issue of executive privilege is crucial. A “big win” for Trump would actually be if a court eventually determines he has executive privilege regarding some or all of the documents seized.

According to CNN, the DOJ has stated that the move to include the issue of executive privilege in the special master’s review would be “unprecedented.”

Of course, the search itself was highly unprecedented. It appears to have applied enforcement of the law in a grossly unequal manner when compared to allegations of improper handling of classified materials by Hillary Clinton when she was secretary of state. She has been shown to have used personal servers to conduct official government business, including handling communications alleged to have been classified.

In addition, there have been numerous allegations of former presidents removing official government documents to their personal residences when they left office. Only once has an FBI raid team been sent in to rummage through a former president’s personal items, taking, it seems, pretty much whatever they wanted. This after Trump had been in negotiations with DOJ regarding handling the documents and had reportedly followed DOJ orders to add an extra lock on the storage location for extra security.

Trump did not get everything from the judge his team requested.

Judge Cannon, in a disagreement with them, said she does not believe that the DOJ showed “callous disregard” for Trump’s constitutional rights by conducting the search. Cannon also did not order the seized documents to be returned to Trump.

The importance of the special master’s review is this, according to CNN: If the special master finds attorney-client privilege or executive privilege, that could prevent certain documents from being used by DOJ in its investigations.

Several steps remain in the process of appointing the special master, including the preparation of a list from Trump and the DOJ of potential candidates and specifications of the special master’s duties and limitations.


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