Andrew McCarthy on the search affidavit | New NY 23rd

Andrew C. McCarthy is a former federal prosecutor, who recently considered running for Congress in New York. He is a Fox contributor and contributing editor for the National Review. He leans right politically. I found this opinion article in The NY Post interesting. A similar article appeared in Newsweek.

McCarthy says DOJ so thoroughly redacted the affidavit that not much was revealed, yet one can speculate. On his first point, he wrote:

Interestingly, one of DOJ’s principal arguments against disclosing the FBI’s warrant affidavit, an argument that plainly persuaded Magistrate Judge Bruce Reinhart, was the need to avoid unfair prejudice to uncharged persons. Of course, the uncharged person at issue here is former President Trump.

It makes little sense that Justice Department officials would be fighting so hard against revealing the sensitive information in the affidavit if they intended to prosecute. If the department indicted Trump, the affidavit would be disclosed to the defense and become public in short order. And if DOJ officials intended to prosecute, they could have charged Trump already. After all, if they had probable cause of crimes justifying a search, then they had probable cause of crimes justifying charges — and the case only got stronger after the search of Mar-a-Lago, which yielded more classified documents.

On the other hand, McCarthy writes that keeping the affidavit secret makes sense if the government doesn’t intend to prosecute.

McCarthy’s second point is this:

I don’t think the Justice Department and FBI want to prosecute Donald Trump on classified-information or document-retention offenses in light of all the considerable downsides of doing so. (I do think they’d like to make a Jan. 6 case against him.) If the former president continues to assail the integrity of law-enforcement officials, however, they might well decide that only a public trial can show who was breaking the law and who was protecting national security.

The downsides McCarthy mentions are these:

  • Classified-information and document-retention cases are difficult to prosecute.
  • Ordinary difficulties would be magnified in a prosecution of a former president.

It will be interesting to see if Andrew McCarthy is right.

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