The Atlanta Journal-Constitution
Special master’s job
Independent arbiter’s review of documents seized at former president’s home could delay the criminal inquiry.
Afederal judge’s unusually sweeping decision to appoint an independent arbiter to sift through government documents seized from former President Donald Trump last month has intensified scrutiny of the role.
In granting Trump’s request, the judge, Aileen M. Cannon of the Southern District of Florida, gave the so-called special master expansive powers, with the authority to evaluate documents not only for those covered by attorney-client privilege, but also for those potentially protected by executive privilege.
The Justice Department and Trump’s lawyers are to submit a list of proposed special master candidates by today.
Here is a closer look.
What is a special master?
A person appointed by a judge to assist the court with its proceedings. A special master is selected to help with a particular matter or case, in contrast to a standing master, who is installed to help on a continuing basis. Masters can hold proceedings and then make reports and recommendations, which the judges can accept or reject.
Why are special masters appointed?
There are various reasons. Sometimes a case raises a complex problem that requires specific expertise, such as computing damages owed to different people in large-scale lawsuits. They also may be appointed to perform tasks that are so time consuming that a judge or a magistrate judge does not have the bandwidth to handle them.
For example, judges may instate special masters to sift through seized records when the FBI has carried out search warrants targeting lawyers or law firms. In those cases, there is a strong possibility they will seize a significant amount of material that is subject to attorney-client privilege that agents working on an investigation should generally not see.
What is this special master for?
Cannon said the special master’s role would be “to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.”
The Mar-a-lago case does not target a lawyer or a law firm, and the magistrate judge who approved the warrant allowed the FBI to instead use its normal procedure: A so-called filter team, made up of agents who are not involved in an investigation, sets aside any documents it sees as potentially shielded by attorney-client privilege.
But Cannon decided that
“the interests and appearance of fairness” justified having a more independent arbiter go through the materials, emphasizing Trump’s status as a former president.
Her decision to include materials potentially protected by executive privilege — meaning communications between Trump and his advisers when he was still the president — drew significant controversy.
Who can be a special master?
“It is usually an appointment given to people who have some independent reputation in the bar,” said Sam Issacharoff, a New York University law professor. “Frequently, it can be retired judges. It can be people who may have stepped down as partners in big law firms, things of that sort. Sometimes, it’s academics when all else fails.”
For example, Barbara S. Jones, a former federal judge, was appointed as a special master to weed out files protected by attorney-client privilege after the FBI conducted searches targeting two of Trump’s personal lawyers, Michael Cohen in April 2018 and Rudy Giuliani in April 2021. She took on the same job in a case involving Project Veritas, which is under scrutiny for its role in obtaining a stolen diary of President Joe Biden’s daughter.
What about classified material?
That many of the documents the FBI seized were marked as classified significantly narrows the pool of people Cannon might appoint. That could slow the process of identifying an appropriate person, and the process could be slowed further if that person’s ability to receive assistance from aides is limited.
After the search, Trump claimed that he had declassified everything he took from the Oval Office, a questionable claim for which no credible evidence has emerged and which his lawyers have not repeated in court. They have instead agreed that “it would be appropriate for the special master to possess a top secret” security clearance.
Notably, federal judges are exempt from needing a security clearance to see classified material relevant to their cases, though their clerks and assistants must still receive clearances.
How long will the review take?
That is an open question. Cannon has not yet issued an order specifically laying out the duties and deadlines for the special master.
This particular situation is unusual partly because Trump’s lawyers did not immediately ask a judge to appoint a special master.
Investigators already have reviewed the records taken from Mar-a-lago, and an FBI filter team already has set aside about 500 pages as potentially covered by attorney-client privilege.
Brandon Fox, a Jenner & Block partner who, until last year, was the head of the criminal division for the federal prosecutor’s office in Los Angeles, said the FBI likely already has created a log describing each document. He said the judge should use that log as a starting point, letting Trump’s legal team flag specific files for the special master to review.
“You don’t want the special master looking at every single document,” he said.
But Fox also predicted that Trump’s legal team likely was to “argue to the judge that you can’t trust the government in the descriptions of those things and so the special master needs to look at everything.”
“How credible the judge finds that argument to be will determine whether this gets slowed down,” he added.
Cannon has hinted that she was inclined to direct the special master to start from scratch and examine every file. In her ruling, she said a special master was appropriate, in part, because she did not have time, herself, to sift quickly through the more than 11,000 government documents and 1,800 other items the FBI seized.
What are the shortterm effects?
It seems very likely to slow down the investigation. In addition to saying she would appoint a special master, Cannon temporarily barred the government from making further use of the seized documents in its investigation.
That order likely shuts down investigators’ ability to continue working. Even if they could avoid using the fact that documents were found at Mar-a-lago as a premise when questioning witnesses, any new information they gather could give defense lawyers an opening to accuse them of violating the judge’s order and put the investigation under a microscope.
The review also could disrupt the inquiry if the special master eventually recommends to Cannon — and she agrees — that there are documents in the trove that are protected by executive privilege. Cannon could rule that the entire investigative team must be replaced because they were tainted by exposure to the information they should not have seen.
The Justice Department surely would appeal — as it noted in arguing against giving any special master that mandate, no court ever has held that a current or former president may use the privilege to shield evidence from criminal investigators who are part of the executive branch. But the appellate process, even if successful, could mean many months of further delay.
What about the longerterm effects?
There are perhaps not many, some legal scholars say. Ultimately, if the Justice Department decides to bring charges in its investigation into Trump’s handling of sensitive government documents, it would need only a few of the records as representative evidence. And there is no serious argument that intelligence reports marked as top secret and produced by agencies like the Pentagon or the CIA are privileged.
Appearing on Fox News this week, former Attorney General Bill Barr — who used his power to shield Trump while in office — said that Cannon’s ruling was wrong and that the department should appeal it. But he also predicted that it was more likely to cause delay than derailment.
“I don’t think the appointment of a special master is going to hold up, but even if it does, I don’t see it fundamentally changing the trajectory,” Barr said, adding: “Documents were taken, classified information was taken and not handled appropriately, and they are looking into — and there is some evidence to suggest — that they were deceived. And none of that really relates to the content of documents. It relates to the fact that there were documents there.”
Mike Huckabee, a political commentator and former Arkansas governor, and Ben Carson, a Cabinet member under former President Donald Trump, are scheduled to join a slate of conservative leaders for the “Pray Vote Stand for Life Summit” next week in Atlanta.
As many as 2,000 people are expected to attend the three-day summit, which is sponsored by the Family Research Council, a Christian advocacy group, and its legislative arm, Family Research Council Action. It will be held Wednesday through Friday at First Baptist Church Atlanta.
The Washington, D.c.-based FRC has taken strong stands against abortion and LGBTQ rights, same-sex marriage and gender-affirming surgery. Speakers will address issues including abortion, voting, education and religious freedom.
“President Biden is talking about the battle for the soul of America and there is (a battle),” said Brent Keilen, vice president of FRC Action. “There is a battle for the souls of our kids and students. A lot of parents are fired up about what is going on in the nation. “
In addition to Huckabee and Carson, scheduled speakers include Gov. Brian Kemp; Melissa Ohden, founder of the Abortion Survivors Network; Anne Graham Lotz, founder of ANGEL Ministries and daughter of the late evangelist Billy Graham; and Jentezen Franklin, senior pastor at Free Chapel in Gainesville, Ga.
Founded in 1983, the FRC is a nonprofit think tank that describes its mission as informing people “about family issues that affect the nation from a biblical worldview,” according to its website.
The Rev. Anthony George, senior pastor of First Baptist Church Atlanta, said the church is allowing the organizers to use the building but did not have any input in the programming.
“It will just be a time for educating Christians on issues that are important for values-based voters,” George wrote in an email.
For several years, the Family Research Council has been on the Southern Poverty Law Center’s hate watch for its antiLGBTQ ideology. It has “consistently demonstrated the use of ANTI-LGBTQ rhetoric and dissemination of materials that target LGBTQ people, spread demeaning untruths, and defame LGBTQ people and their supporters,” Rachel Carroll Rivas, the law center’s interim deputy director of research wrote in an email.
Bishop Thomas Lewis Brown Sr., presiding bishop of the Christian Methodist Episcopal Church in Georgia and a founder of Faith Works, a voting rights group representing more than 1,000 Black congregations, accused the Family Research Council of wanting to roll back gains made in the last U.S. Senate and presidential elections.
“It shows we did something right in 2020. There is definitely a battle for the soul of America, but this is all wrapped up in religious language and sentiment,” Brown said. “This is a battle of over just what kind of America we want to be.”
He pointed out the group’s stand against abortion.
“They want to make sure that women are not free and the most basic right that anyone has is to decide what to do with her own body,” he said.
It’s no coincidence that the summit is being held in Atlanta.
Georgia is an important battleground state with two closely watched races. One is between Democratic U.S. Sen. Raphael Warnock and Herschel Walker, a Republican backed by Trump.
Warnock’s win in 2020 helped turn Georgia, a reliably red state, to blue as Joe Biden won the state and the White House.
The state’s gubernatorial seat is also at stake in a contest between Kemp, a former secretary of state, and Stacey Abrams, who ran a close race against Kemp in 2018.
The Family Research Council has come under scrutiny by House Democrats, who recently asked the IRS to review the tax-exempt status of the group, arguing that it may be using that designation to avoid financial scrutiny, according to a recent article in The Washington Post.
Democrats opposing the IRS designation say the group’s tax status “strains credulity” because the group operates primarily as “a political advocacy organization,” according to the Post article.
In an opinion piece in the Aug. 18 issue of the Washington Times, a conservative daily newspaper, Tony Perkins, president of the FRC, described the group as a religious organization “with a published statement of faith that works with thousands of churches across the nation. So, we sought and obtained the classification as an association of churches . ...
“This designation is not a legal dodge. We have relationships and partnerships with more than 40,000 churches of many denominations and traditions nation