McCarthy latest column was... well angry?

Judge Throws Mar-a-Lago Probe into Chaos

Federal district judge Aileen Cannon waited until Labor Day to issue a potentially explosive order granting former President Donald Trump’s motion for a special master to review documents seized from Mar-a-Lago. After waiting for over a week, during which she allowed the Justice Department to take investigative steps based on documents she now says may be subject to executive privilege, Judge Cannon ordered the government to suspend its criminal investigation — at least to the extent investigators are and have been relying on documents seized from Trump’s Florida estate. 

There are no heroes in this drama. The Justice Department has been playing with fire from the start. Trump dragged his feet in seeking the special master, to the point that DOJ had nearly completed its privilege review by the time he finally filed his court action. Cannon, whom Trump appointed to the district court in 2020, inexplicably allowed nine days to elapse after first signaling her inclination to appoint a special master, during which she wrung her hands about whether to order the appointment and, more significantly, failed to rule on Trump’s application for a court-ordered suspension of the Justice Department’s review process and directive that DOJ cease using documents Trump claimed were privileged in furtherance of its criminal investigation. 

The Justice Department blithely assumed that Trump had no executive privilege even though this is an unsettled question in the law.

To be clear, McCarthy (as a former Federal prosecutor) had sort of took the side of the DOJ on this one. He was not against a special master being provided at first (sort of agreed with Turley and others that one should been appointed by the DOJ upfront). However, McCarthy did not like the Trump legal team's arguments for the most part. He felt they were someone disjointed and that the counterpoints made by the DOJ were valid. Now how much of that comes from his background as a Federal prosecutor is an obvious question, because if there is a tendency for McCarthy to be wrong, it is erroring on the side of the Fed. 

Ultimately he argued (as the DOJ did) that basically Trump "waited too long".  He still makes this argument in this particular article that the special master could be considered moot because a taint team had already sorted through everything. Which of course, was the same argument that the DOJ made. The judge obviously rejected it. If that became a precedent, then how often would an investigation go 24-7 on their own to beat a court date just to make this sort of subject "moot". 

On the flip side, McCarthy seems to concede that if Trump eventually wins his privilege argument (which probably goes all the way to the USSC) that a special master would eventually rule that hundreds (if not thousands) of additional documents to be privileged. In that event any member of the FBI who has viewed those documents would have to leave the investigation and any criminal leads found from those documents would need to be vacated. Perhaps that is the issue? The DOJ and FBI would look pretty bad if that was the case.

Either way, it would seem reason enough to assign a special master to at least sort those documents out while that legal debate ultimately plays out. 

The argument about whether or not a President's privileged conversations "remain" privileged when they leave office has never really been fully vetted by the courts. But we know that the idea of Presidential privilege being held for a former President has at least one fan on the USSC, as Kavanaugh has argued:

A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.

Sure... what point would privilege make, if your privileged conversations become public the minute you leave office? Even Nixon was given some degree of leeway on the subjects of privilege by the courts, although not to the absolute degree he wanted to make it. His problem was not about how long privilege should be a thing, but about what sort of discussions could be considered privileged. Since then the courts have sort of decided things of this nature on a case by case basis. No absolute precedent has been created. 

One has to wonder if now might be the time for that precedent to become reality.