— Washington A federal judge granted former President Donald Trump’s request for a third party to review the materials seized by the FBI during its search of his South Florida estate, Mar-a-Lago, on Monday, opening a new chapter in the dispute over the former president’s handling of sensitive government documents.
The order from U.S. District Judge Aileen Cannon sets a deadline of September 9 for the Justice Department and Trump’s attorneys to confer and submit a list of proposed candidates to serve as the outside arbiter, also known as a special master, as well as a detailed proposed description of the special master’s duties and limitations.
During the FBI search at Mar-a-Lago, 33 items were taken from a storage room and the former president’s office. More than one hundred documents with classification marks were discovered in thirteen boxes or containers, and three documents with “confidential” and “secret” markings were confiscated from Trump’s Mar-a-Lago office, according to the Justice Department.
The FBI also discovered 48 empty folders with “classified” banners along with newspaper and magazine articles, books, and apparel preserved in boxes or containers removed from the storage area, according to a complete list of goods confiscated from Mar-a-Lago last week that was released to the public.
Cannon wrote in her 24-page order that FBI agents also seized medical documents, tax-related correspondence, and accounting data. She also cited a federal prosecutor’s admission that investigators seized “personal effects without evidentiary value” and 500 pages of material that may be subject to attorney-client privilege.
Here is additional information on what a special master is and can do.
What is an exclusive master?
Courts appoint special masters to act on their behalf, according to the Legal Information Institute at Cornell Law School. According to Rule 53 of the Federal Rules of Civil Procedure, the appointment of a special master must be “the exception and not the rule.”
The American Bar Association provides rules for the appointment and employment of special masters, which include discovery oversight and management, pretrial case management, and privilege reviews.
In the case involving Trump, the court will appoint a special master to examine the records taken at Mar-a-Lago for possibly privileged data pertaining to attorney-client or executive protections.
What abilities does a special master possess?
In accordance with the Federal Rules of Civil Procedure, the court’s appointment order specifies the special master’s powers and limits. The American Bar Association suggests that the order explain the extent of the engagement, including the master’s responsibilities, powers, compensation rates, rules for issuing decisions, and time restrictions and standards for examining the master’s orders, findings, and recommendations.
In a 30 August filing detailing its opposition to a special master, the Justice Department outlined numerous conditions that must be met before Cannon can authorize the appointment of an independent arbiter, including that the special master’s duties be limited to evaluating Trump’s claims of attorney-client privilege over the set of potentially privileged documents identified by an FBI filter team, which identified and set aside seized records that may be privileged. The court ruled, however, that since the filter team “did not screen for data potentially subject to presidential privilege, additional review is necessary for this additional reason.”
In addition, federal prosecutors urged the court to establish a timeline for the special master’s assessment, with final findings on contested material due by September 30. However, the proposal from the Justice Department was filed before Cannon authorized the appointment of a special master.
When have unique masters been utilized?
According to the American Bar Association, the appointment of special masters “has always been regarded as an unusual measure” that is employed on rare circumstances.
The Supreme Court has utilized these arbitrators in instances involving original jurisdiction, in which the high court functions as a trial court, which frequently involve state border disputes. The Justice Department also designated a special master to administer compensation to victims of the terrorist acts of September 11, 2001.
U.S. District Judge Thomas Penfield Jackson appointed Harvard Law School Professor Lawrence Lessig as special master to investigate “complex problems of cybertechnology and contract interpretation” in the Microsoft antitrust case brought by the U.S. government. The dispute questioned whether Microsoft’s Internet Explorer browser could be isolated from its Windows 95 operating system. Microsoft attempted to withdraw Lessig’s appointment, alleging that the position’s responsibilities were too wide. The court of appeals found in favor of Microsoft on procedural grounds.
Who could act as the special master in the Trump case?
The Justice Department recommended that if the special master must review classified documents, he or she should already possess a Top Secret/SCI security clearance, and prosecutors noted that any third party appointed by the court would likely be required to obtain “specific authorization” from the intelligence community in order to review “especially sensitive materials.”
Rule 53 states that a master cannot have a relationship with the parties, attorneys, action, or court that would disqualify a judge under federal law.
The Justice Department and Trump’s attorneys have until Friday to finalize a list of potential candidates to serve as special master in the dispute over the FBI-seized records. National Security Counselors, a public interest law company specializing in national security and privacy law, submitted a list of four law professors with expertise in executive privilege problems to the court at the end of last month.
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