On Monday, a federal judge in Florida ruled in favor of appointing a special master to review documents seized during the search of former President Donald Trump’s Mar-a-Lago estate, which yielded top secret classified records. U.S. District Judge Aileen Cannon — who was appointed by Trump — suggested that Trump may have an executive privilege claim because of his status as a former president.
Appearing on Fox News Live, former federal prosecutor Andrew McCarthy said the special master review could be "potentially explosive."
“It’s a big win for the Trump team and a potentially explosive ruling if it holds," McCarthy said. "I would imagine it’s important enough that the government will appeal this immediately.”
"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.
Legal experts have criticized the judge's decision. Neal Katyal, a former acting solicitor general, tweeted that the judge's order appointing a special master "won't stop the very serious Trump stolen docs investigation." But Katyal went on to say that he thinks the Justice Department "has to appeal here" because the ruling sets a "terrible precedent."
The ruling directs both parties to “meaningfully confer” and together craft a filing with a list of potential candidates who could serve as a special master as well as a proposal outlining any limitations on their review.
After a pointed legal battle, it’s not clear who Trump’s legal team and the Justice Department might agree on, but the candidates will likely need a high-level security clearance in order to review the roughly 300 classified records recovered. A detailed inventory of items recovered from Mar-a-Lago by the FBI was unsealed last week, revealing that 48 empty folders marked "CLASSIFIED" were among the materials recovered by the agents who executed the search warrant at Trump's Florida home.