What’s Andy McCarthy’s Take on the Special Master Ruling?

CLAY: We bring in now Andy McCarthy, who has been doing an amazing job breaking down the legalities surrounding the Mar-a-Lago raid. We told you on the program we’re not gonna get overwhelmed by the Mar-a-Lago raid ’cause we think in many ways it’s a political distraction. But I am fascinated with the legal maneuvering that is going on. So, Andy, let’s start here.

We know that a federal district court judge has granted Donald Trump’s legal team to request to have a special master reviewing all of the seized documents from inside Mar-a-Lago. And there are allegations that those documents — we know they initially took the passport but that there may be a lot of medical records, maybe tax records that were also seized here.

What did you think of the ruling? What is its significance? Couple of big questions here. And, as it pertains to the 11th Circuit, do you expect the Department of Justice to appeal? Where are we headed procedurally, in your mind?

MCCARTHY: Clay, probably I should answer those last two together because I think that really hits the important part. I was surprised by the rationale for Judge Cannon’s ruling, which is that not only does President Trump as a former president retain some measure of executive privilege, but it can actually be, she says, potentially exercised against the executive branch itself, which is a controversial ruling.

It was very foolish for the Justice Department to proceed with this without getting a ruling on that from the court first because that’s a controversial area of the law. I think the Justice Department may have the better of the argument. But when you’re in an is unsettled area, what you want to do is get the court ruling first before you start doing stuff based on a potentially bad assumption about the law, and that’s why I think they really have to go to the 11th Circuit. I think they’ll want to get that reversed, if they can.

BUCK: Andy, it’s Buck. Where do you see this going? I mean, let’s assume for a second that it isn’t reversed. Take us down that pathway.

MCCARTHY: Well, you guys teased this up mentioning the — I think Clay just mentioned that we’re about 60 days from the midterms. And it’s a good point, Buck, to pause and remind people that the Justice Department purports to go by this sort of guidance that they call the 60-day rule which is really not a rule. It’s kind of an unwritten set of guidelines.

But the idea is they’re not supposed to take any big, public steps in investigations within a 60-day window of major elections that could conceive — where — under circumstances where the law enforcement action could influence the outcome of the election.

So, I have a feeling that other than necessary things like if you’re gonna appeal to the 11th Circuit and if they’re gonna have oral argument and that sort of stuff, I think we’re probably not gonna hear a whole lot with this for the next 60 days, other than what President Trump has to say about it.

And I think the same thing is probably true — not that you asked me about this, but the same thing is probably true of Hunter Biden. I’d expect that nothing’s gonna move on that for the next 60 days, either.

CLAY: All right, Andy, you did 20 years in a prosecutor’s office; so, you know of which you are talking to a great extent. You mentioned the 11th Circuit. What if they uphold this ruling? Then in theory it would go all the way to the Supreme Court.

And I want to kind of just for everybody out there who’s not sitting around like analyzing the legality here, you said something that I think is so fascinating. Trump is arguing that essentially, he retains executive privilege from when he was president even if that executive privilege in his opinion is contrary to what the current executive, i.e., Joe Biden believes about executive privilege.

I’m not an expert in this realm at all. Tell us what this means in layman’s terms what this battle is like potentially at the 11th Circuit and how you would handicap what the judges there might do in terms of analyzing it.

MCCARTHY: Well, I think there’s a very good chance Trump is going to lose in the 11th Circuit, and I think he probably lose in the Supreme Court. And let me explain why. Executive privilege is this idea that there has to be confidentiality between the communications — the communications between the president and his top advisers and how subordinates carry those, you know, decision-making, how that gets carried out.

It’s a tenet of originalist legal thinking — and I consider myself in that school of thought — that as Justice Scalia wrote in a famous dissent in 1988 in a case called Morrison v. Olson which was a special counsel case, all executive authority in the government, in the Constitution, is reposed in one official — the president of the United States. Everybody else who was in the executive branch is a delegate of the president power.

In other words, they don’t have their own power. They get to use the president’s power at the president’s pleasure, which is why the president can fire anyone he wants to fire except the vice president, who’s, you know, separately elected under the Constitution.

If you believe that, as I believe it, it’s hard for me to swallow the idea that a former president who has no power, not only has — retains a measure of executive privilege, but also has executive privilege that he can exercise against the will of the incumbent president and the executive agencies of the government, I think it might be arguable that executive privilege could be exercised, say, against Congress or against, you know, some Freedom of Information —

BUCK: So, Andy, though, explain — and this may be off — and just for everyone, we’re speaking to Andy McCarthy, Fox News, you know him there as legal analyst, and he was at the mighty Southern District of New York for 20-plus years as a federal prosecutor — so, Andy, executive privilege is supposed to be able to protect deliberations between a president and his top advisers, right? So, essentially —

MCCARTHY: Right.

BUCK: — should be able to have a discussion. If this ruling doesn’t stand, then can’t any president say, “Hey, you know, that stuff that you thought was executive privilege, I actually want access to all that. My political party wants to put that on the front page of the New York Times”?

MCCARTHY: Yeah. That’s why I think, Buck, that Biden is being very foolish by a sweeping denial that Trump has executive privilege here. I think what Biden should have done is said, “You know, look. Let’s look at this document by document,” and then he would decide whether to support Trump on executive privilege or not.

Because this shouldn’t be a partisan consideration. Biden’s gonna want to have executive privilege when he is a former president. You know, he’s gonna want the incumbent president — and institutionally this is what’s happened in the past — he’s gonna want to have a situation where whoever his successor is honors his assertion —

BUCK: Andy, it sounds like you’re telling me that President Biden’s breaking some norms here. Uh-oh.

MCCARTHY: But you’re right. I think this is really foolish. I mean, I don’t think Trump should be making sweeping claims of the executive privilege, but neither do I think that Biden should be doing sweeping rejections. I think, you know, there’s very likely to be executive privilege material in what the government is looking at. And I think it was a mistake for Biden to just waive it without having any idea what he’s waiving.

CLAY: Andy, you mentioned the 60-day rule which would theoretically put a damper on any investigation anyway. But based on this federal district court judge’s ruling, there is no case here that would be able to be prosecuted, I think, basically against Donald Trump.

So, there obviously, I think, has to be an appeal, unless, by the way, there was some agreement that we had like, you know, plea agreement behind the scenes and they just — they didn’t want to try to set any precedent going forward. 11th Circuit ruling, regardless of what the 11th Circuit rules, wouldn’t you think, Andy, that Trump, if he lost, would appeal it to the Supreme Court at minimum as a stall tactic — how long are we talking about this process potentially playing out, in your mind, legally before this issue is resolved?

MCCARTHY: Yeah. See, Clay, I think that the — the fact that we have to consider, in connection with that, is that the Trump people waited a couple of weeks before they sought a special master. So, it’s hard to unring that bell. You know, at this point they actually had gone through their process of segregating privilege, what they think is privileged information and had given what they thought was not privileged to the investigation team.

So, I think even if this continues to wind up the appellate courts, that doesn’t necessarily mean the courts would put a stop to the government’s investigation. You know, they might be able to like — they might be able to get vacated the part of Judge Cannon’s ruling where she basically suspended the Justice Department’s use of these materials in its investigation, which you just alluded to.

That doesn’t make a lot of sense to me, I have to say, at a point where they had already completed their process. And I think, you know, what you could say if you’re the higher courts is, “You know, look. They’ve already got the documents. If there’s taint, they’re already tainted. So, we’re not gonna jump the gun on that.

If it turns out down the road that they’ve used information that turns out to have been privileged, then at that point Trump can complain and get evidence thrown out or do me a favor whatever is appropriate and we’ll hear that then. But we’re not gonna stop them from investigating at this point. That doesn’t make any sense.”

BUCK: Andy, is this, in your mind, heading toward nothing burger territory, as in they got the docs, there’s gonna be some wrangling over the docs, but there’s no further legal action of consequence? Or in the back of your mind or maybe in front of your mind are you still thinking, they may decide right before Trump announces to run for president that they are gonna prosecute?

MCCARTHY: Buck, I have a little humility that I think the Justice Department could actually use. So, I don’t assume that I’m necessarily right about this, because, you know, this is a moving target, and we’ve all had things that we’ve been right and wrong about.

What the Justice Department did wrong here was this they not only decided that Trump had no privilege that could be asserted against the executive branch, they were so sure about it, they didn’t get a court ruling. And as a result, I can’t sit here and say that that’s not — that that necessarily ends up being a nothing burger. It could be a nothing burger if I’m right and Trump doesn’t have a privilege that he can assert —

BUCK: Andy, I’m sorry. I meant nothing burger in terms of whether they’re going to charge him for the classified documents, which is kind of the — you know, what we’re talking about here affects, obviously, that final decision. I’m looking even beyond this to, is this not going anywhere as a criminal matter.

MCCARTHY: Yeah, I think, Buck, I continue to think that obstruction is what they’re looking at. I don’t think they want to do a classified information case just because those cases are so hard, as you know — you know, it’s hard to do a classified information case without exposing the classified information.

BUCK: Yep.

MCCARTHY: And if that wasn’t a problem this wouldn’t be criminal activity in the first place. I think if they go after him for obstruction, I could see them throwing in the presidential records because that doesn’t raise any, you know, security problem.

And they can do the obstruction without identifying what’s in the classified documents because it doesn’t matter what they say if he — you know, if they’re gonna say he tried to conceal them or if the issue is even like whether they were classified or not. That goes to whether, you know, he did the things that you would need to do to declassify them. Doesn’t matter what’s in them.

But if you start making downtown about the classified information, I just think that, you know, you run into the old graymail problem where the defendant says I can’t defend myself without getting into what’s in the substance of the documents. So, I don’t really think they want to do that case.

And I’ve always thought that if they can — if there’s any January 6th information in what they seized, I think they would use that ’cause they’re definitely trying to make a January 6th case. Whether this advances that or not, we don’t know, right.

CLAY: Andy, this feels like legal trench warfare that we have officially entered, which is why I’m kind of focused on the time frame. So, last dual question here for you. How long does this process Clay out? It feels to me like this is years, not days or weeks.

And how, ultimately, from your perspective, do they get over the decision not to charge the Hillary Clinton with — let’s be honest — something that arguably is much worse considering those were electronic documents that could have been easier to transfer, and she certainly doesn’t have the presidential privileges arguments that Donald Trump would be able to apply here.

I’m curious legally, the precedent of Hillary, how does that play out, and ultimately what is the time frame that we are looking at here?

MCCARTHY: Two things. One, I think the Hillary thing will weigh heavily on Garland, because the issue here is not just whether there are crimes but whether it’s appropriate under all the circumstances to bring charges here. And I think the country’s already on fire with the idea, quite appropriately, that we have a two-tier justice system. That would fuel that in a way that we haven’t even seen up until now.

So, that should be something that weighs on them heavily. As far as how long it’ll take, Clay, I think the Democrats like this. You know, the last four weeks while Trump is front and center, all of a sudden Biden’s numbers are ticked up a bit, you know, the Democratic Congress’ prospects have ticked up a little bit as far as the midterms are concerned.

So, I think anything that makes Trump front and center and takes attention away from Biden and what he’s doing to the country is helpful to them. And that kind of plays into legal proceedings because as you know, you can drag this out for a long time.

CLAY: No doubt. Andy, we appreciate the time. You’re fantastic on all these issues. I feel like this story is not going away anytime soon.

MCCARTHY: Amen. I’m afraid that’s right.

CLAY: He’s Andy McCarthy.