Finding a special master in the Trump classified documents case is not an easy task, legal experts say

An aerial view of former US President Donald Trump’s Mar-a-Lago home after Trump said FBI agents raided it, in Palm Beach, Florida, US, August 15 2022. REUTERS/Marco Bello/File Photo

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WASHINGTON, Sept 7 (Reuters) – A federal judge has given the U.S. Justice Department and Donald Trump’s lawyers until Friday to draw up a list of potential candidates to serve as a special master to review files the FBI seized in the estate of the former president in Florida. .

But finding people who have the experience and security clearances to handle the highly classified documents — and the willingness to get into the political bushfire surrounding the investigation — will be no easy task, experts said. legal.

“If we’re talking about highly classified material, there’s only a relatively small number of people who would meet the job requirements,” said attorney Kenneth Feinberg, who served as special master for the Workers’ Compensation Fund. victims of September 11.

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“It would have to be someone who was prepared to weather the hurricane. It’s not purely a security issue. It’s become a political issue,” he said.

An illustration of the challenge: The nonprofit law firm National Security Counselors provided the court last week with a list of four potential candidates with expertise on executive privilege. All four have since made public comments that either suggest they don’t want the job or that could be used to argue against them by Justice Department or Trump lawyers.

U.S. District Judge Aileen Cannon ruled Monday that a special master should review records seized from Trump’s Palm Beach home to weed out anything that should be hidden from prosecutors, either because of attorney-client privilege or executive privilege. – a legal doctrine that protects certain White House Communications from disclosure.

Last year, the US Supreme Court sidestepped the question of how far a former president’s claims of privilege can go by rejecting Trump’s offer to keep White House records from the select committee of January 6.

However, the US National Archives, after speaking with the Justice Department, told Trump’s lawyers earlier this year that he could not assert privilege against the executive branch to protect the records. from the FBI.


A special master is an independent outside expert who is sometimes asked to examine documents seized by the government in sensitive cases where certain elements could be privileged.

Whoever is chosen will likely need to have a high-level security clearance, as more than 100 of the more than 11,000 documents are marked as top secret, secret or confidential.

A special master has never been called before to determine whether the documents are covered by executive privilege, especially in the unique circumstance of a former president asserting the right over the prerogative of current president Joe Biden.

“Appointing a special master, I think, may be more difficult than people realize,” said John Bolton, Trump’s former national security adviser who also served in the Justice Department. “How many people are there with TS/SCI clearance? And how many of them are experts in executive privilege?”


None of the four potential candidates identified by national security advisers in a court filing last week have openly embraced the idea.

One, Mark Rozell, the dean of George Mason University’s school of public policy, called for his name to be removed from the list, telling Reuters: “Flattered that someone thinks I I am qualified, but I prefer to analyze from the outside of events.”

A second, former Justice Department lawyer Jonathan Shaub, did not say whether he would take the job but criticized Cannon’s order in an interview with Reuters on Monday, saying it was “full of ‘inaccuracies about the law’ and that the judge appeared to be ‘bending over backwards to help Trump.’

Heidi Kitrosser, a law professor at Northwestern University, told Reuters she thought she was unlikely to be selected, after some conservative media outlets and Trump supporters on social media highlighted her political comments. previous.

The fourth person, Mitchel Sollenberger of the University of Michigan-Dearborn, said he did not have a security clearance.

A Justice Department spokesperson said Monday the government is reviewing Cannon’s order without commenting on next steps. Trump’s attorneys did not respond to requests for comment.

Most previous cases involving special masters involved practicing attorneys who had a duty to keep their clients’ records confidential.

A special master was appointed, for example, after the FBI searched the homes and offices of former Trump lawyers Rudy Giuliani and Michael Cohen.

Some legal experts said it’s best to seek out recently retired judges from Washington, DC or Florida who have handled national security cases and could easily get their clearance reinstated.

Robert Costello, an attorney for Giuliani, said that after the FBI seized items from his client’s home and office, the government and defense team were able to quickly agree on a special master candidate: retired judge Barbara Jones.

“They will try to narrow it down to one,” he said, noting that they will be looking for someone who can be “neutral and fair.”

If they can’t agree, he said, the judge can choose someone herself.

“The judge would be wise to make sure this is a consensual candidate,” Feinberg said. “She may end up appointing someone despite objection from one side or the other, but at least she made an effort to determine and calibrate the degree of opposition.”

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Reporting by Sarah N. Lynch and Jacqueline Thomsen in Washington and Karen Freifeld in New York; Editing by Scott Malone and Mark Porter

Our standards: The Thomson Reuters Trust Principles.

Jacqueline Thomson

Thomson Reuters

Washington, DC-based Jacqueline Thomsen covers legal news related to politics, the courts, and the legal profession. Follow her on Twitter at @jacq_thomsen and email her at

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