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So What Is a Special Master Anyway?

By Steven Ellison, Esq. on September 09, 2022 10:41 AM

On Sept. 5, U.S. District Court Judge for the Southern District of Florida Aileen M. Cannon appointed a special master to review some 11,000 documents obtained by the FBI in its search of former President Donald Trump's Mar-a-Lago estate.

This ruling essentially delegates to a third party the power to decide what documents the government can and can't use in its criminal investigation of the former president.

To many lawyers, this development is breathtaking. Before we explain why, let's talk about what a special master is and why Judge Cannon's appointment of one here is so controversial.

What Is a Special Master?

special master is an independent party appointed by a court to help with a case. They are often, but not always, former judges. Masters can do many of the things that a judge can do, such as make rulings on evidence and resolve disputes between parties about documents. They can also make recommendations to the judge about factual findings.

Courts appoint masters when they cannot effectively or timely deal with a case. Some cases, for example, involve complex scientific or technical issues that an expert may be in a better position to handle than a judge or lawyer. Similarly, some cases involve large numbers of documents that a busy judge might not have time to deal with (particularly if there is a gaggle of lawyers fighting over them). In cases such as these, a court might appoint a special master to help out.

What Is This Special Master Supposed To Do?

In her order, Cannon ruled that the special master would:

  • Review the property seized by the government
  • Manage and make recommendations about assertions of attorney-client and executive privileges
  • Evaluate Trump's claims for the return of property he says belongs to him

Cannon further halted the government's review of the seized documents for criminal investigatory purposes until after the master has a chance to look at them. If the master determines the documents are privileged, the government can't use them in their criminal investigation of Trump.

Executive Privilege Considerations

One particular bone of contention relates to executive privilege. Executive privilege protects the president from having to disclose certain confidential communications with subordinates in the executive branch. The notion is based on the separation of powers: To do their job, presidents need honest, candid advice from their counselors without having to worry about congressional or judicial scrutiny.

Trump claims that at least some of the seized documents are subject to executive privilege. On the other hand, the Biden administration says that President Biden waived any privilege that may apply to the documents seized by the FBI.

The question of whether a former president can rely on executive privilege over the objection of the incumbent president hasn't come up before (more on that below), but Cannon, a Trump appointee, sided with Trump's lawyers for now. This has enraged Democrats, the government, and many legal commentators. Even some Republicans, including William Barr (who served as attorney general under Trump), disagree with Cannon's decision.

Why Is This Such a Big Deal?

Never before has the FBI and the DOJ executed a search warrant of a former president's residence. And we really don't know what Trump took with him to Mar-a-Lago when he left the White House. But according to the Washington Post, at least some of the seized documents may have been related to the nuclear capabilities of a foreign government. If Trump did mishandle classified documents, the public might learn the hard way.

The special master's review involves a cutting-edge legal question. No appellate court has ruled on whether a former president can assert executive privilege over the objection of the incumbent president. Given the stakes involved, the Supreme Court may have to decide.

Political Implications

Democrats currently hold a slight majority in the House of Representatives. The Senate is evenly split between Democrats and Republicans. Polls suggest that the upcoming midterm elections are a toss-up. Were Trump indicted before the elections, Republicans might lose the chance to take control of Congress.

The special master's appointment interferes with the government's ongoing criminal investigation into the former president. If Cannon's order stands and the special master needs time to conduct a privilege review, the government's investigation might not finish until after the November elections. The delay could affect the balance of power in Washington.

What Happens Next?

Cannon ordered the parties to file a joint list of suggested special master candidates and a detailed proposed order outlining:

  • The duties of the special master
  • Any express limitations on the master's authority
  • The ability of the special master to communicate with the court or individual parties in the absence of the other party
  • A schedule for the special master's review
  • The manner and amount of the master's compensation

The court gave the parties until September 9 to file. In the ordinary course, the court would then review the parties' submissions and issue a detailed appointment order. But there is nothing ordinary about this case.

On Sept. 8, the day before the joint submission was due, the DOJ filed its notice of appeal. That means the 11th U.S. Circuit Court of Appeals will review Judge Cannon's decision and determine whether it stands. It's hard to predict what the 11th Circuit will do, but we would be remiss if we didn't point out that six of the 12 active judges on that court were appointed by then-President Trump. We shall see.

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