September 6, 2022

Morning Joe brought on NBC News legal analyst Andrew Weissmann, former general counsel in the FBI and who served as lead prosecutor in the Mueller special counsel's office.

"You know, I have been bellowing for years now about how Donald Trump is above the law and he should be accountable for his crimes," Joe Scarborough said.

"But i'm not catastrophizing over this. If it delays things a few weeks, the Justice Department can work around that. Also, let them litigate the executive privilege. I don't think he has it, and the Supreme Court may have to rule on that. Other than those two issues, why does -- what is the tragedy in this special master being appointed?"

"Okay, let me see if i can convince you," Weissmann said.

"Let's first talk about something that you mentioned, which is equal justice. Donald Trump should not be treated better or worse than anybody else under investigation. What the judge did here is so out of the norm. Her discussion of the facts and her at the time tethering of this to the law, it bears no resemblance to what happens in federal and state investigations. No one else would be treated this way.

"What's the harm? Other than it is opening the door to every defendant is going to now ask for this, which is, nobody wants to have a fast investigation. Everyone is going to want to delay an investigation. Every defense lawyer is going to say, you know what, I want a special master appointed to review any document at all that I have an interest in. It doesn't work that way. You do have an opportunity to do that if you get indicted. It really isn't going to be a question of a couple weeks. It is unheard of for an Article III judge to enjoin a criminal investigation. Unheard of to do that.

"Now, knowing it can delay things, it's not a question of appointing somebody and the special master will do their own independent review, the defense is going to keep raising issues and wanting to litigate and take them to the special master, then take them to the district court judge, then the 11th circuit. This could open the door to months of litigation. The precedent, as I said, is horrendous. No other defendant or punitive defendant is given this kind of right."

Scarborough said, "My concern is that, at the end of the day, Donald Trump is brought to justice. If it is delayed, if steps are taken to make it look like our democracy is bending over backwards to be fair, what is the ultimate damage in this case? Does it make it less likely that the DoJ can actually prosecute a case against Donald Trump?"

Weissmann said it depends on how long it goes on.

"I do think there is damage to the principle that nobody is above the law and everyone should be treated the same. Let me give an example of how easy this issue is. In the special counsel investigation, when we did a search of Paul Manafort's home, all of the documents were put in a room. We called up his defense counsel. Very reputable firm, William Cutler. We invited them to look at the documents, to flag anything they thought was attorney/client privilege. We had the taint team review those things. We worked it all out in a matter of days. If there were any disputes to be brought to the judge, there is no need to enjoin us, no need for a special master. It comes and goes, and there is a normal process for this.

"That's why what the judge did here just seems so out of the ordinary. i don't think it really helps with people's confidence if you have special rules for somebody. It isn't the case that because you're the former president, you get more justice. You should get equal justice," he said.

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