Why the special master is a 'potentially explosive' development in Donald Trump’s favor: ex-prosecutor

06 September 2022

Former federal prosecutor Andrew McCarthy recently weighed in on the latest development in former President Donald Trump's case involving top-secret classified government documents confiscated from his Mar-a-Lago property.

According to McCarthy, the special master review could be "potentially explosive." During an appearance on Fox News Live, he explained why.

“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,” McCarthy began.

"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 said.

"It’s one thing for the government to have that theory, I think it actually may be a sound theory,” he added. “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."

McCarthy also offered a hypothetical perspective on what could ultimately taint the investigation.

“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 explained.

“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,” McCarthy concluded.

Despite McCarthy’s arguments, there have been opposing views. Some legal experts are expressing doubt about the judge’s ruling to allow the special review.

"Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch," Peter Shane, a constitutional expert at New York University, told The New York Times.

"They would not be able to do so in the context of a criminal investigation — and certainly not after the material been seized pursuant to a lawful search warrant.”

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