Special Master to Newsmax: Executive Privilege Cases Come Up ‘Once Every 50 Years’

Special Master to Newsmax: Executive Privilege Cases Come Up 'Once Every 50 Years' (Newsmax/"American Agenda")

By Nick Koutsobinas | Wednesday, 07 September 2022 05:52 PM EDT

Special Master David Cohen spoke with Newsmax to give his take on the uniqueness of Former President Donald Trump's call to appoint a special master as well as explain what someone in that position does.

Speaking with "American Agenda" on Wednesday, Cohen says that a special master "is kind of a fancy old term for judge's helper."

Cohen, who is not working on Trump's case, adds that "anytime a judge needs help, normally in a complex case, they will sometimes appoint a special master. Sometimes parties will ask the judge for appointment of a special master. Sometimes the judge will come to the parties and say, 'you know, this is a case that's very complicated. There is a lot of work here. I'm only one person, and I would like to appoint a special master.'"

From there, the special master works as an arbiter, deciding which information or documents, say during a period of discovery, are attorney-client privileged and which are not.

But as Cohen points out, Trump's case is unique. In most instances, "attorney-client privilege comes up every day." But "executive privilege seems to come up, maybe once every 50 years."

Because of that, Cohen speculates that a special master with top secret clearance would need to be appointed. Cohen says such a person would likely be a "retired federal judge."

Cohen illustrates the uniqueness of Trump's case by providing an example of his own "opioid" case.

"For example, in the opioid litigation, there are literally tens and hundreds of millions of documents, and many of those are potentially privileged. The court will appoint a special master to review the documents. The special master will receive those documents in camera — meaning in private; the other side doesn't get them yet — and will review them, and make sure that the claims of attorney-client privilege are valid."

"That is part of what's happening in this case," Cohen continues. "President Trump has said some of these documents are attorney-client privileged, and the FBI has agreed. The FBI said, 'yeah, you're right, about four or 500 of them, they are privileged. And we agree. We should not be able to use those.'"

For the special master, they would decide which documents are attorney-client privilege, or in Trump's case, possibly executive privilege. From there, they would write a "report and recommendation."
In such a case, "I sign it," Cohen says. "And it is my document that I send to the judge. And, of course, both parties get a copy of it. And I say 'here are the documents that I think are privileged. And here are the documents that I think are not privileged. And here are my reasons why.' And the parties then have an opportunity to object. They can file an objection and ask the court to review it. It's essentially an appeal to the court."

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