Former President Donald Trump seems to be on a roll — scoring several legal victories over the Department of Justice (DOJ) recently. Former federal prosecutor Andrew McCarthy shared his assessment of the latest legal maneuverings.
McCarthy shared his thoughts during an interview on Fox News on Monday, highlighting the important distinction between the judge viewing documents held by the former president as being protected by attorney-client privilege and documents protected by executive privilege.
McCarthy argued that the distinction is “potentially explosive,” and the fact that Judge Cannon authorized the appointment of a special master may indicate she is leaning toward viewing the documents in question as protected by both — executive and attorney-client privilege.
“It’s a big win for the Trump team and a potentially explosive ruling if it holds,” said McCarthy. “I would imagine it’s important enough that the government will appeal this immediately.”
“In a nutshell,” McCarthy continued, “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.”
Noting that the FBI may have jumped the gun in ordering the raid on Trump’s home, McCarthy 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 to 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.
“Noting that ruling that documents are protected by executive privilege could be a devastating blow to the DOJ,” McCarthy said:
He continued: “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 added that a judge might rule that the FBI has mishandled the documents taken from Trump’s home:
“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.”
U.S. District Judge from the Southern District of Florida Judge Aileen M. Cannon is now overseeing the case — taking over for Judge Bruce Reinhart. On Monday, Judge Cannon ordered the appointment of a special master to “review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for the return of property.”
Cannon’s order adds:
“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.
“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.”
The Conservative Brief reported that “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 attorneys argue that Trump does not have the same legal privileges to classified documents as he did when he was in office.
The FBI argued: “[Trump] is no longer the president, and because he is not … he was unlawfully in possession of [the documents].”
The Conservative Brief reported that “Judge Cannon appeared skeptical of the DOJ’s arguments at times.”
Scroll down to leave a comment and share your thoughts.