What's up with McCarthy?

After predicting that the Judge would rule against Trump on the special master, McCarthy has gotten a little snippy

Donald Trump Has It Wrong: Cutting through the Confusion on Executive Privilege

The doctrine of executive privilege is now the centerpiece of the controversy between the Justice Department and Donald Trump over the property seized by the FBI from the former president’s Mar-a-Lago estate. I explained late last week how the Justice Department is trying to carve classified information out of the litigation over the seizures, in which both sides have proposed special-master candidates for the unenviable task of sifting through thousands of documents to ensure that anything potentially privileged is screened out from viewing by the team of prosecutors and agents investigating the case. Still, there remains dispute about what executive privilege is, what it protects, and who may invoke it. So let’s discuss.

The privilege belongs to the incumbent president and no one else. Just as former president Trump has conflated his personal interests with the interests of the executive branch, the Nixon Court mistakenly conflated the ownership of presidential documents with the authority to assert privilege over presidential communications recorded in those documents.

What is interesting is that just a few weeks ago McCarthy was lock step in line with Turley (and several others)  in arguing that the questions of Presidential privilege for a former President was a matter that had never been settled before the courts. Now, it appears that McCarthy is suggesting what the DOJ is suggesting. That the issue is clear and obvious and does not need to litigated. Not sure what the sudden change of attitude comes from, but something has changed and there doesn't appear to be much of anything "new" here. 

Moreover, he concedes that the original rulings in Nixon v Administrator may have provided that Presidential privilege does continue after a President leaves office. McCarthy, however, argues that that the ruling has been undermined by the 1978 PRA (as prior to the PRA the Presidential records were seen as personal property of the President). He also spends several paragraphs moving around the edges of how Kavanaugh was wrong to state in a recent decision that the privileged documents of a President remain privileged after they leave office (otherwise it undermines the concept of privilege). But it seems McCarthy is somehow wanting to do so without really saying Kavanaugh is wrong.

There is also several paragraphs on the "partisan interests" of both Parties involved. Is Biden and the DOJ being partisan by undermining any claims of privilege, or is Trump being partisan in attempting to use that privilege for political reasons? Or is everyone being partisan. I am guessing it is both.

Again. Not generally one to question anyone like McCarthy on legal issues. But it seems to me that we should not be taking the general argument of the DOJ at face value anymore than we should be taking the general argument of Trump at face value. Just as I do not see the harm in a special master, what is the harm in allowing the courts to make the ruling on this issue of privilege?

Since it has not been definitely decided, maybe it is time to take this concept through the litigation process and see what the USSC ultimately has to say. Maybe McCarthy and others are correct and Presidential privilege ends the moment a President leaves office and is only and solely controlled by the current President. Or maybe others (like Justice Kavanaugh) will end up on the majority end of a decision that suggests that once privileged, always privileged. Or maybe we end up with something in the middle. 

Either way, I believe this is alway the best manner to handle these sorts of disagreements. Sort of the reason we have a court system. With all due respect to the legal experts who might feel differently?