In Trump Documents Case, What Is a Special Master?

Legal experts are assessing the impact of a federal judge’s decision Monday to order the appointment of a “special master” to determine whether any of the documents seized from former President Donald Trump’s Florida home are protected by attorney-client privilege or executive privilege.

Citing the need “to at least ensure the appearance of fairness and integrity,” Judge Aileen Cannon also ordered the Justice Department to stop using the seized material for “investigative purposes” while the review is conducted.

Cannon’s ruling is widely seen as a setback for the Justice Department as it investigates how hundreds of classified government documents ended up at Trump’s Florida home after he left the White House in January 2021. But the degree to which the move will impede the investigation remains to be seen.

Here are five questions about the appointment of a special master:

What is a special master?

A special master is an independent outside attorney who acts as “the court’s lawyer,” said John Malcolm, a former Justice Department prosecutor.

“A special master is sometimes appointed by a judge to deal with the parties and to review all of the documents in question and then to make recommendations to the judge,” said Malcolm, now the vice president of the Institute for Constitutional Government at the Heritage Foundation.

The Justice Department conducts its own internal review of privileged material seized during a search. If the subject of a search is not satisfied with the review, he or she can ask a judge to appoint a special master.

The special master task is sometimes given to a retired judge. The goal is to ensure that prosecutors do not improperly view privileged records such as private emails between lawyers and their clients.

Though rare, appointing a special master in a criminal case is not unheard of. In 2018, after the FBI seized documents from the office and home of ex-Trump lawyer Michael Cohen, a federal judge tapped a former member of the federal bench to review material.

“Traditionally, you would see these sorts of things happen in the context of searches of attorneys’ offices or review of documents from, say, an attorney who has become a cooperating witness for the government, where there is a specific concern that documents handed over by the attorney are in fact privileged,” said Jordan Strauss, a former Justice Department prosecutor who is now a managing director at Kroll, a security consulting firm.

Who will serve as the special master in the Trump case?

The judge has given the two sides — the Justice Department and Trump’s lawyers — until Friday to propose a list of possible candidates to serve as special master.

If the parties can’t agree on a candidate, Cannon has indicated that she will appoint one herself.

But not any lawyer can fulfill the role. That is because more than 100 of the documents seized from Mar-a-Lago are classified, some at the highest classification level, and anyone reviewing them must have security clearance to view secret government documents.

What is more, Strauss said, the special master “would probably [have to] go into a secure facility and by hand review each of the [more than] 10,000 documents and then report back to the court and potentially, eventually the parties.”

What materials will the special master be examining?

The judge’s order authorizes the special master “to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney client and/or executive privilege.”

In a court filing last week, the Justice Department said it had taken about 11,000 documents and 1,800 other items from Mar-a-Lago, including about 100 classified documents.

The review could take weeks or longer, according to experts.

How might the special master’s appointment affect the investigation?

Judge Cannon’s ruling is likely to delay the investigation, but by how much remains to be seen.

“It will certainly delay things, especially if the judge’s injunction against the investigative team from using the material to continue their investigation stays in place for a long time,” Malcolm said.

“If, on the other hand, this is done on a fairly expedited basis and the special master is appointed and looks at all of this stuff and says, ‘I think that the government did a pretty good job with their taint team, and I don’t really have much to change other than that,’ it will have ended up being a slight delay,” Malcolm said.

One thing that could potentially draw out the investigation is the discovery of executive privilege material, private communications that a president can protect from disclosure.

The Justice Department has argued that only the current president, Joe Biden, can assert executive privilege claims to government documents.

But Cannon, citing a 1977 Supreme Court opinion recognizing that “former Presidents may assert claims of executive privilege,” dismissed the argument.

“In the Court’s estimation, this position arguably overstates the law,” Cannon wrote.

A dispute over whether Trump can assert executive privilege will likely prolong the investigation, according to legal experts.

“There may very well end up being legal issues related to the extent to which executive privilege remains with the former president, if at all, when the current president wishes to waive it,” Malcolm said.

Is Trump receiving different treatment?

The ruling by Cannon, a Trump appointee, has raised questions about the fair application of the rule of law.

Former FBI Deputy Director Andrew McCabe, now a CNN analyst, said Cannon’s ruling “is very tailored to and considerate of the former president.”

“There is not another litigant in the United States of America who could have gotten the same ruling,” McCabe said on CNN on Monday.

But conservative legal experts dismissed the criticism.

“We’ve seen before the people that President Trump appointed don’t agree with President Trump,” said Saikrishna Prakash, a professor of law at the University of Virginia. “[Former Attorney General] William Barr was appointed by the president, and he doesn’t agree with him now. And now [federal] judges have rejected [the former] president’s claims in court.”