Former federal prosecutor Andrew McCarthy said former President Donald Trump’s team scored a major victory last week when a U.S. judge approved his request for a special master to review documents taken by the FBI from his Florida home last month.
“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 told Fox News on Monday morning.
Late last month, following the Aug. 8 raid on the Mar-a-Lago resort, Trump’s attorneys filed a petition with Florida Judge Aileen Cannon to obtain a special master—or a neutral third party—to review the documents that were taken by FBI agents. Cannon sided with Trump’s team in her order, noting the unprecedented nature of the FBI targeting a former president’s home, while adding that she has concerns regarding government leaks about the case to the media.
Lawyers for the Department of Justice (DOJ) wrote in a separate filing they are planning to appeal Cannon’s order with the 11th Circuit Court of Appeals. Among other claims, DOJ prosecutors said a special master will slow down their investigation of Trump and argued that an agency filter team has already reviewed the documents that were taken.
“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,” McCarthy told Fox, “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.”
‘He May Have Executive Privilege’
He added that if it turned out the documents fall under that privilege, it “could taint the prosecutors who reviewed them and it could also taint their investigation because they are now conducting an investigation.”
“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.
A property receipt and warrant unsealed by a separate U.S. magistrate judge, Bruce Reinhart, show the DOJ is investigating Trump on possible obstruction of justice and Espionage Act-related charges. A heavily redacted affidavit unsealed last month revealed prosecutors said they had probable cause to believe that classified materials were being stored at Mar-a-Lago.
But Trump has publicly denied those claims and indicated that he declassified some of those materials. Among other things, the FBI also took personal records, medical files, tax returns, and passports during the raid, Trump has said.