Federal judge moves to bring in special masters for review Documents seized from former President Donald Trump’s home We began the very vague, sensitive and risky task of finding a lawyer for the role and defining exactly what that lawyer would do.
Those ultimately selected by U.S. District Court Judge Eileen Cannon have access to documents described as some of the government’s most highly classified secrets. And they may have little guidance.
On Friday, the Justice Department and Trump’s attorneys will submit a legal brief laying out the proposed candidate and recommendations on how the review should proceed.
Cannon issued an order on Monday, granting a request from Trump for a special master, an attorney outside the government. Sift through the documents obtained in the FBI’s Mar-a-Lago search It may be a privileged item.
The Justice Department has previously asked courts to appoint attorneys who already have top-secret security clearances typically required to investigate seized classified materials. It narrows the pool – and finding what works for both sides within that limit could be complicated. Outside legal experts said a former federal judge might be an ideal candidate.
But that’s only part of the challenge. Exactly what lawyers are asked to review documents for remains largely unknown. artillery command.
According to the order, the review will include material subject to executive privileges. This is probably the legal gray area that has caused the most contention in this case.
“The problem is that the parties never come to an agreement because neither party has an incentive to agree with the other’s view,” said a former attorney at the Department of Justice’s National Security Agency, now a lawyer at the University of Minnesota. said Alan Rosenstein, who is in charge of school professor.
The Justice Department called the review “unprecedented.”
“It’s not easy to find someone to do it, but it’s not the hardest thing,” Jonathan Schaub, a former Justice Department attorney, told CNN. He said it would be harder to reveal.
“It’s going to be difficult because I don’t think the courts understand what executive privilege means,” added Shove, a law professor at the University of Kentucky.
The Department of Justice vehemently opposed the appointment of a special master, may still appeal Canon’s order – primarily because it prevents certain aspects of criminal investigations relating to document handling from proceeding.
In addition to concerns about attorney and client privilege, which special masters typically focus on, Cannon said in Monday’s order that whether the former president’s claims could overcome privilege remains an open legal question. He said he was also allowing executive privileges to be reviewed. Refusal to do so by current officials – a matter of intense disagreement among legal professionals.
In this case, President Joe Biden left the decision on whether to follow Trump’s claims of privilege to the National Archives, which concluded that, according to court filings, it was not an obligation. Even in situations where executive privilege commonly appears, such as litigation and parliamentary information-seeking, there is much debate about its extent.
While some consider it to be limited when it comes to communication between the president and his top advisers, the Department of Justice does not allow such types of cases to involve all sorts of intra-executive deliberations, the product of the work of attorneys, and claims to cover national security privileges.
The Mar-a-Lago case adds a new complication as Trump demands executive privilege material be withheld from the executive branch itself.
A special master review also searches for documents protected by attorney and client privileges. This is not a very uncommon order, but usually such reviews are done when a law firm is searched.
This uncharted territory, and what critics say is a vague order by Canon, leaves great doubt as to what exactly the special masters are looking for after gaining access to the seized material. .
The parties are expected to submit briefs by Friday proposing “duties and limitations” for the special captain.
Kel McClanahan, a national security attorney and adjunct professor at the George Washington University Law School, told CNN, “You know Trump’s team is going to do a broad overhaul of their version of the appointment order. ‘ said.
But if the Justice Department presents very narrow arguments about what executive branch privileges should cover, there is a risk that those arguments will be used in future transparency debates.
But the first hurdle is finding a candidate the government will be comfortable sharing some of its most sensitive secrets with.
Court filings state that if a special master is to review classified material, he or she must “already have Top Secret/SCI security clearance.”
“We treat [the documents] presumed to be classified. We will not hand them over to anyone who does not have proper authorization,” said Justice Department attorney Jay Bratt. said at a hearing last week.
Trump’s lawyers called the concern a “bogeyman.”
President Trump’s attorney, Jim Trusty, argued that “if you have a special master without permission, it could be expedited by the Department of Justice.” No. It can be done very quickly, especially with a gentle thrust from this court.”
Some legal experts say the government may decide it’s worth abandoning some of the protocols people normally have to go through in order to expedite a special master review. suggested.
Some of the documents covered in the investigation may be highly sensitive (such as the records on foreign nuclear capabilities in the Washington Post report) and counterintuitively suggest that the government could expand the pool of persons acceptable from a clearance standpoint. to Rosenstein.
“It’s a very sensitive issue to the extent that you risk national security, no matter who you choose to be your special master.” ”
Even if a judge decides to select a special master who already maintains an active top secret security clearance, for some documents they may grant access to the specific program in question. need to do it. Some of the documents recovered from Mar-a-Lago contain information known as “compartmentalized” information. This information is limited to certain groups of clearance holders who need to know and is not available to everyone. top secret clearance.
But Brad Moss, an attorney who specializes in federal employment and security clearance law, said the process is relatively straightforward.
“This can largely be handled with just extra paperwork and security briefings,” Moss said in an email to CNN. A special master could “read aloud” a specific program (any work that needs to be done in a secure facility (SCIF)) and then sign a briefing confirmation form and additional non-disclosure agreements, he said. Told.
If the special master does not have active or at least recent clearance, the process becomes more complicated. Depending on how long ago the Special Master was last “ruled” for clearance, the government may request additional SF-86 forms. This is a standard background check questionnaire that must be completed for
Moss said it is also possible that the government might request a polygraph, though unlikely given the special master’s limited involvement in the document.
The same process must be followed if the Special Master has staff.
Retired judges could be particularly attractive candidates, some legal experts say. Judges are not necessarily granted security clearance to do so, but given that the retired jurist likely trusted government secrets when he was on the bench, the government should , retired legal scholars may be happy to have access to the material.
“I think there are qualified judges, but I don’t think it’s a very large pool,” said former DOJ attorney Daren Firestone.
Even if the government is satisfied, the Trump campaign may not be satisfied. Outside observers said the type of recent government defectors that fit the bill in terms of security clearances could be viewed unfavorably by the Trump team, which has cast sensational accusations of political bias.
“Ultimately, the pool of potential candidates won’t be too difficult for the Justice Department to identify. The question is which candidates will be accepted by the former president’s attorneys,” said the Justice Department’s National Brandon Van Gluck, a former defense attorney, said.
Ultimately, Canon chooses.