'Classified' Docs May Complicate Finding Trump Case Special Master Documents from Mar-a-Lago. (AP)
By Jay Clemons | Tuesday, 06 September 2022 05:33 PM EDT
The intrigue over which legal expert gets named "special master" for the battle between former President Donald Trump and the Department of Justice (DOJ) could soon reach a new strata of national scrutiny.
On Monday, U.S. District Judge Aileen Cannon granted the Trump team's request for a special master to be brought in to provide an independent review of the supposedly "classified" or "top-secret" materials seized from the FBI's Aug. 8 raid of Trump's Mar-a-Lago resort.
The special master will likely decide which documents — which Trump reportedly stored in a secure location at his Florida home — are protected by attorney-client privilege, or executive privilege, via declassification.
According to Newsweek, special masters are typically attorneys or retired judges. They also review materials that might fall under attorney-client protections.
"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," David Cohen, a special master who serves in federal cases, told NPR this week.
From Cohen's standpoint, the primary qualification of any special master is someone who "can remain neutral."
Cannon may have final say on the special master selection, but the DOJ and Trump's legal team have until Friday to submit filings that include a list of potential candidates.
Mathew Miller, lawyer and former Director of the Office of Public Affairs at the DOJ tweeted on Monday:
"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. Good luck."
Per Cannon's Monday ruling, the DOJ was obliged to stop using any of the materials seized from Trump's home as part of the criminal investigation into the alleged mishandling of classified documents — until the special master's review has been completed.
Habba says the Presidential Records Act gives Trump — and every other U.S. president, past and present — the authority to declassify documents while holding office.
And by all accounts, Habba says Trump's team of Florida attorneys had been fully cooperating with the National Archives department.
"So, it was a bit of surprise, you can imagine, when the [FBI] raid happened," says Habba.