The battle over the ex-handling president’s of confidential government data entered a new phase on Monday when a federal court granted former President Donald Trump’s request for a third party to assess the files the FBI acquired during its search of Mar-a-Lago, his South Florida mansion.
The Justice Department and Trump’s attorneys have until September 9 to confer and submit a list of potential special master candidates as well as a comprehensive proposed explanation of the special master’s responsibilities and limits.
This deadline is set by U.S. District Judge Aileen Cannon.
Agents from the FBI seized 33 items from the former president’s office and a storage room while searching Mar-a-Lago.
The Justice Department said that more than 100 papers with classification marks were discovered in 13 boxes or containers, and that three documents with the classifications “confidential” and “secret” were seized from workstations in Trump’s Mar-a-Lago office.
According to a full inventory of goods recovered from Mar-a-Lago made public last week, the FBI also discovered 48 empty folders with “classified” flags amid newspaper and magazine articles, books, and items of apparel housed in boxes or containers removed from the storage space.
However, Cannon noted in her 24-page order that FBI agents also took accounting and tax-related correspondence, 500 pages of documents that might be protected by attorney-client privilege, and medical records.
She also cited a federal prosecutor’s acknowledgement that investigators also seized some “personal effects without evidentiary value.”
Here are some details on what a special master is and what they can do.
An exceptional master is what?
According to the Legal Information Institute at Cornell Law School, special masters are chosen by a court to serve on its behalf. According to Norm 53 of the Federal Rules of Civil Procedure, the appointment of a special master must “be the exception and not the rule.”
According to American Bar Association standards for the appointment and usage of special masters, they may carry out a variety of tasks, including managing and overseeing discovery, managing cases prior to trial, and performing privilege reviews.
In the Trump case, the special master who will be appointed by the court will be entrusted with searching through the papers seized at Mar-a-Lago for any personal goods or possibly privileged information that would be covered by executive or attorney-client privileges.
What authority has a unique master?
The rights and restrictions of the special master are laid out in a court-issued appointment order, in accordance with the Federal Rules of Civil Procedure.
The American Bar Association advises that the order specify the extent of the engagement, the master’s responsibilities and powers, remuneration rates, guidelines for examining the master’s orders, findings, and recommendations, as well as the procedures for giving judgments and deadlines.
The Justice Department outlined a number of requirements to be met if Cannon were to approve the appointment of an independent arbiter in an Aug. 30 filing outlining its opposition to a special master, including that the special master’s responsibilities should be limited to evaluating claims by Trump of attorney-client privilege over the set of potentially privileged documents identified by an FBI filter team, which combed through and set aside seized records that may be privileged.
However, the court ruled that further review was necessary for that additional reason since the filter team “did not screen for data possibly subject to executive privilege.”
Federal prosecutors requested that the special master’s review have a timeline imposed by the court, with final determinations on contested data to be made by September 30.
However, the request from the Justice Department was sent before Cannon approved the appointment of a special master.
How and when are special masters used?
The appointment of special masters “has always been seen as an unusual measure” used only in exceptional circumstances, according to the American Bar Association.
The Supreme Court has utilised these arbitrators in original jurisdiction matters, in which the high court serves as a trial court and often involves conflicts over state boundaries.
The Justice Department also named a special master to oversee the distribution of compensation to Sept. 11 terror attack victims.
Lawrence Lessig, a professor at Harvard Law School, was appointed special master in the Microsoft antitrust action launched by the U.S. government to look into “complex problems of cybertechnology and contract interpretation.”
It was a legal dispute about whether Windows 95, Microsoft’s operating system, and Internet Explorer, its browser.
Microsoft attempted to have Lessig’s appointment revoked, claiming that the position’s remit was too broad. On procedural grounds, the appeals court decided in Microsoft’s favour.
Who may act as a special master in the Trump case?
Prosecutors noted any third party appointed by the court would also likely have to obtain “specific authorisation” from the intelligence community to review “particularly sensitive materials.”
The Justice Department advised that if the special master must review classified documents, he or she should already have a Top Secret/SCI security clearance.
According to Rule 53, a master cannot have a connection to the parties, counsel, case, or court that would disqualify a judge under federal law.
The Justice Department and Trump’s legal team have until Friday to agree on a list of potential special master candidates in the legal battle over the documents the FBI acquired.
A list of four law professors with expertise in presidential privilege was provided to the court by National Security Counselors, a public interest legal business that focuses on national security and privacy law, late last month.