Following former President Donald Trump small legal victory for a special master to review the documents the FBI seized from his Mar-a-Lago home, legal experts say finding the right person to fill that role could prove challenging — if the federal judge’s order even holds up.
U.S. District Judge Aileen Cannon sided with Trump on Monday by granting his request to appoint a special master, a role typically held by an attorney, to “review the seized property” that includes top-secret documents to determine whether they are protected by attorney-client or executive privileges.
Trump’s former attorney general William Barr, who said last week that he couldn’t think of a “legitimate reason” as to why Trump possessed classified documents, told Fox News on Tuesday that he thinks Cannon’s opinion is “wrong” and that the government should appeal.
“The opinion, I think, is wrong. I think the government should appeal it. It was deeply flawed in a number of ways. I don’t think the appointment of a special master is going to hold up,” Barr said. He added that Cannon’s decision will amount to a “rain delay for a couple of innings” but won’t ultimately affect the trajectory of the Department of Justice’s investigation.
Barr sys he thinks DOJ will prevail if/when it appeals Cannon’s ruling, says it’ll all amount to a “rain delay for a couple of innings” but not change trajectory of the criminal probe >>> https://t.co/vce6XaOwOM
— Kyle Cheney (@kyledcheney) September 6, 2022
Cannon, a 41-year-old Trump appointee, will be the final determiner as to whom the special master will be. The judge gave the DOJ, which is against appointing a special master, and Trump’s legal team a short window until Sept. 9 to submit a joint filing that includes a list of candidates with proper national security clearance, a move that some legal experts believe will further delay the DOJ’s investigation.
“In practice, this is … relatively uncharted ground,” said Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies who spoke to the Washington Examiner.
“Unlike the attorney-client privilege side, in which there’s a very well accepted template for how to do it because it happens so often, this is one where there aren’t a lot of footprints to walk in,” Olson said of Trump’s executive privilege claims.
Some legal experts have even raised skepticism over the likelihood that both the DOJ and Trump’s attorneys will be able to present viable options for Cannon to choose from. The DOJ has contended that if a special master is needed, that person should already have top-secret/sensitive compartmented information security clearance to review some sensitive materials.
“So all Judge Cannon has to do now is find a special master who: a. is an expert in one of the more contested, unexplored areas of the law; b. already has a Top Secret clearance; c. isn’t seen as tainted through service in a recent administration. Goood luck,” said Matthew Miller, attorney and former director of the Office of Public Affairs at the DOJ, in a Monday tweet.
DOJ officials are investigating whether Trump violated the Espionage Act and committed obstruction of justice, according to an unsealed warrant for the August raid. Government officials had sought documents Trump had at his Mar-a-Lago resort in Florida after leaving office on at least two occasions before the Aug. 8 raid, in which DOJ says more than 100 documents with classified markings were seized.
David Cohen, a special master who serves in federal cases, said the pinnacle qualification for a special master is someone who “can remain neutral,” according to a Monday interview with NPR.
“You can’t come in and be a judge or a special master with an agenda or really kind of wanting one side to win; you need to look at all the facts and the evidence and what the parties are arguing and apply the law to the facts and come out to what the right result is regardless of who is appearing before you,” Cohen said.
While Cannon’s decision to put a temporary pause on part of the DOJ’s investigation appears to have struck a blow to the department, which argued an outside party assigned to review the documents would be unnecessary, there are still some possible openings for it to continue work related to its investigation into Trump.
Cohen contends that appointing a special master “could slow things down” for the DOJ’s investigation but said Cannon could provide an opportunity for a “kind of parallel processing, where the review continues by the Justice Department while the special master is reviewing the documents as well.”
As Barr noted, the DOJ could still appeal Cannon’s order to the 11th U.S. Circuit Court of Appeals if it decides to argue it was wrong to permit a special master to review the FBI’s findings from Mar-a-Lago. The agency has said it will speak about the investigation through court filings but released a statement after Cannon’s Monday ruling, saying, “The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation.”
Cannon held that a special master could determine whether Trump made valid claims of executive privilege over some of the documents despite DOJ officials arguing Trump cannot assert executive privilege against the objection of a sitting president, Joe Biden, who has denied Trump’s assertion of post-presidency executive privilege claims in the past. Ultimately, Cannon found that the DOJ’s claim was not settled law.
If the DOJ submits an appeal ahead of the Sept. 9 deadline, the agency could seek a clear ruling as to whether Trump retains executive privilege against the objection of a sitting president, according to a National Review article by Andrew McCarthy, a former U.S. attorney for the Southern District of New York.
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McCarthy suggested a review by the appeals court “could sidestep that question” and decide Cannon was incorrect to conclude that she had jurisdiction to appoint one.
“Moreover, the 11th Circuit could decide that Trump has not demonstrated that he has standing in connection with the documents pertinent to the special master issue — a question the district failed to consider adequately,” McCarthy added.
