McCarthy logically reiterates why the Justice Department is not planning to prosecute...

Justice Department Bulldozes Court on Trump Privilege Claims

Of course, I’m not the judge on the case. I am an analyst — and one who does not believe the Justice Department intends to prosecute Trump for mishandling classified information or records-retention violations. Therefore, I’m not surprised that prosecutors are living dangerously. But it’s worth observing that they are being presumptuous, heedlessly so in my view.

Many judges would get pretty steamed about that. It will be interesting to observe how Judge Cannon reacts. For now, I would simply say that, if the Justice Department’s filter team — inadvertently or not — passed along to its investigative team materials that were privileged, this would mainly be a problem only if the government intended to prosecute. The investigators’ exposure to privileged information might trigger disqualification of “tainted” prosecutors or dismissal of charges.

By contrast, if there isn’t going to be an indictment, then there’s nothing much to worry about. The government can afford to be very aggressive, both in its narrow construction of privilege and in its determination to bull through the privilege-review process without waiting on such inconveniences as judicial review. The Justice Department can afford to irritate the court if there is not going to be a courtroom prosecution.

Again, I don’t think the Justice Department intends to prosecute Trump on classified information and records-retention offenses. I think the government just wanted its documents back — to restore order, to conduct a damage assessment regarding any national-security compromises, and to assess whether any documents bear on the DOJ’s January 6 investigation.

As McCarthy and many other prosecutors have explained, a search warrant is almost always provided at the same time  that an arrest warrant is issued.. The main reason would be that doing a search prior to an arrest tips off the potential suspect and gives them time to hide other things or even flee. So far nobody has offered any good "prosecutorial" reasoning for searching first and arresting later. Those who seem to believe Trump is on his way to the slammer just seem to avoid this issue.

Moreover, as McCarthy is arguing here; the actions of the Justice Department makes it fairly obvious that they are not worried about whether or not they would be able to use any of these documents in any prosecution. Had they "been" worried about that, then there would be no need to rush through things as they have and they should have welcomed a special master to make both the search and the subsequent inspection of the information by the books. Slow and steady wins the race in these sorts of situations. 

But by "bulldozing" both the search and the subsequent filtering through of the information they have likely tainted enough of the information that there is a strong possibility that none of it would be usable for any future prosecution if it turns out that they have been looking at privileged information. But again, as McCarthy points out... none of that matters if they were never really interested in prosecuting the former  President. 

McCarthy suggests that a Judge should be "furious" with the Biden Justice Department here and the manner in which they have ignored protocols and the fourth amendment. He is not suggesting one way or the other how the Judge might rule in light of the Justices department moving forward and completing their research rather than waiting for a ruling. Just that such an action is really a direct slap across the Judges face here. 

The point very well could be a moot one, if the DOJ is not planning on charging. If they do attempt to file charges, then that is a whole other can of worms. Then it would be almost a done deal that a special master would be assigned to "check the work" of the DOJ.

While many are arguing that Trump and his legal team were slow to the draw here, from a criminal liability standpoint, the more rope that the Justice department is given here, the more likely it is that they might hang themselves as it pertains to any possible criminal prosecution. Anyone who has viewed or been informed regarding anything that is considered privileged would not be allowed to be involved in any prosecution and no charges can be filed using any of the information that might be considered privileged. 

In my humble opinion, this was a political move and one that was designed to gather information that could be "leaked" to damage Trump and the GOP.  I don't believe that criminal prosecution was ever the goal. I believe this was about political persecution. I might also suggest that they probably got much of the same as they got when they investigated Trump for two years over Russian collusion. What the little boy shot at and missed!