A federal judge’s decision to bring in a special master for review materials seized from former President Donald Trump’s home opened up an extraordinarily murky, sensitive, and high-stakes task of finding a lawyer to fill that role and defining exactly what he or she will do.
Whoever U.S. District Judge Aileen Cannon ultimately chooses will have access to documents that have been described as some of the government’s most sensitive secrets. And they may have very little advice.
On Friday, the Justice Department and Trump’s attorneys will file legal briefs outlining their proposed nominees, along with recommendations for how the review should proceed.
Cannon issued an order Monday granting a request for Asset that a special master – that is, a lawyer from outside the government – sifting through documents obtained during the FBI’s search for Mar-a-Lago for potentially privileged items.
The Justice Department previously asked the court to appoint a lawyer who already has the top secret security clearance usually required to review seized classified documents. But that narrows the pool of potential candidates – and finding a mutually acceptable one within that limit can be tricky. Outside legal observers have said a former federal judge could be an ideal candidate, given the experience veterans of the judiciary often have in dealing with classified documents as well as the reputation for neutrality they would bring to this post.
But that’s only part of the challenge: exactly what the attorney will be asked to review in the documents has been left largely unclear by Cannon Order.
According to the order, the review will include documents covered by executive privilege — a legal gray area that has been perhaps the source of the most heated controversy in the case.
“The problem is that the parties will not come to an agreement, because there is no incentive for either party to accept the other party’s point of view,” said Alan Rozenshtein, a former attorney for the DOJ’s National Security Division who is now a University of Minnesota law. school teacher.
The Justice Department called the review “unprecedented”.
“Finding someone to do it isn’t easy, but it’s not the hardest thing,” said Jonathan Shaub, a former Justice Department attorney. Shaub told CNN it would be even more difficult for the parties and the court to determine what the parameters of the review will be.
“It’s going to be difficult for the court, because I don’t think the court understands what executive privilege entails,” added Shaub, now a law professor at the University of Kentucky.
The Department of Justice vehemently opposed the appointment of a special captain, and it can still appeal Cannon’s order – largely because it prevents them from pursuing certain aspects of the criminal investigation into the processing of documents.
In addition to the attorney-client privilege issues that special masters typically focus on, Cannon said in her Monday order that she was also allowing a review of executive privilege, as she said there remained a question. open legal debate over whether a former president’s assertions of privilege could overcome the current incumbent’s refusal to do so – a matter of fierce disagreement among legal experts.
In this case, President Joe Biden left it to the National Archives to decide whether it would uphold Trump’s claims of privilege and the Archives concluded that it was not obligated to do so, according to court documents. Even in contexts where executive privilege typically arises—such as in Freedom of Information Act litigation or congressional lawsuits for information—there is much dispute about the extent of its privilege. scope.
Some see it limited to communications between a president and his top advisers, while the Justice Department has argued in such cases that it covers all sorts of internal deliberations of the executive branch as well as the work product of lawyers. and the national security privilege.
The Mar-a-Lago case adds a new complication because Trump is asking that the executive’s privileged material be withheld by the executive himself.
The special principal examination will also search for documents protected by solicitor-client privilege – a much less unusual order, although such examinations are usually carried out when a lawyer’s office has been raided.
This uncharted territory – and what critics say was a vaguely written order from Cannon – has left huge questions over what, exactly, the special master will be looking for once he gains access to the seized documents.
Both parties are expected to submit a memorandum proposing the “duties and limits” of the special master by Friday.
“You know the Trump team is trying to put a broad scope of scrutiny in their version of the nominating order,” Kel McClanahan, a national security lawyer and adjunct professor at the University of Washington Law School, told CNN. George Washington University.
But if the Justice Department makes an extremely narrow argument about what executive privilege should cover, it risks having those arguments used against it in transparency disputes.
But the first hurdle is finding a candidate with whom the government feels comfortable sharing some of its most sensitive secrets.
In court filings, he said that if a special handler was to review classified material, he or she should “already have a Top Secret/SCI security clearance.”
” We treat [the documents] presumably as classified. We wouldn’t give them to someone who doesn’t have the proper clearances,” DOJ attorney Jay Bratt said. said at a hearing in the case last week.
Trump’s attorney called the concerns “a bogeyman.”
“If there’s a special master who doesn’t have clearance, it can be expedited” by the Justice Department, argued Trump attorney Jim Trusty. “It doesn’t have to take weeks or months. It can be done very quickly, especially with a gentle push from this Court.
Some legal experts have suggested the government may decide it’s worth waiving some of the protocols a person would normally have to follow in the interest of getting the special main examination started quickly.
Some of the documents retrieved during the search may be so sensitive – such as records regarding foreign nuclear capabilities described in a Washington Post report – that it may, against all odds, broaden the pool of those the government deems acceptable to the government. authorization point of view, according to Rozenshtein.
“It’s almost so sensitive that you’re just going to take a national security risk no matter who you choose as your special master,” he said, calling it an argument for “just picking someone really respected and renowned because there’s almost no verification amount that’s going to make this fundamentally appropriate.
If the judge decides to choose a special master who already has an active Top Secret security clearance, he will still need access to the specific program at issue for some of the documents. Some of the documents recovered at Mar-a-Lago contain what is known as “siloed” information – information that is restricted to a certain group of license holders on a need-to-know basis, rather than accessible information. to anyone with Top Secret clearance.
But that process is relatively straightforward, according to Brad Moss, an attorney who specializes in federal employment and security clearance law.
“Most of it can be handled with just a little extra paperwork and safety briefings,” Moss said in an email to CNN. The special master would “read over” specific programs — any work that should be done in a secure facility, or SCIF — and then sign acknowledgment forms and likely additional nondisclosure agreements, he said. he declares.
The process would become more complicated if the special captain did not have an active – or at least recent – clearance. Depending on when the special master was last “tried” for clearance, the government may require an additional SF-86 form, the standard background check questionnaire that national security professionals must complete. to get their permission.
Moss said it’s also possible — though unlikely given the special master’s limited involvement with the documents — that the government could also require a polygraph, as is usually the case for someone who has access to compartmentalized information.
If the special master has staff assisting them, they will need to go through the same process.
A retired judge may be a particularly attractive candidate, several legal experts said, because many veteran judges have already had to deal with classified documents in the cases they have handled. Judges do not necessarily receive a security clearance to do so, but the government may feel comfortable with a retired lawyer accessing the documents, given that these officials were likely entrusted with government secrets when they were on the bench.
“I imagine there are qualified judges, but I can’t imagine it being a very large pool,” said Daren Firestone, a former DOJ attorney.
While the government may be happy, Team Trump may not be. Outside observers have said the types of recent government exiles who fit the bill security clearance may be viewed as objectionable by the Trump team, which has leveled sensational accusations of political bias .
“Ultimately, the potential pool of candidates probably wouldn’t be too difficult for the Department of Justice to identify. The question is going to be which of these candidates would be acceptable to the former president’s lawyers,” said Brandon Van Grack, a former attorney for the Justice Department’s National Security Division.
The choice, ultimately, will fall to Cannon.