What a special master is, how it impacts Trump documents investigation

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Lawyers for Donald Trump made a big request last month in a legal filing about the ongoing investigation into the possible mishandling of classified documents at the former president’s Florida residence: They wanted the judge to appoint a special master to examine the papers to see if any should be kept from investigators.

The prospect of a special master has now been the subject of multiple legal filings and a hearing in a federal courthouse in West Palm Beach. Trump’s lawyers reasoned that a neutral outside expert could sort through all the documents and separate out any protected by attorney-client or executive privilege. The process, they argued, would restore “trust” in an investigation that Trump and his allies have blasted as politicized and unfair.

On the other side, the Justice Department said that there was no legal basis for such a person to be appointed in this investigation — and pointed out that it had already examined all the seized documents, so a special master would be pointless.

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On Monday, the judge granted Trump’s request. Barring an appeal, the Justice Department and Trump’s lawyers have until Friday to submit a mutually agreed upon list of potential special masters.

Here’s what you need to know about special masters and how they work:

What is a special master?

A special master is an impartial outside expert who can essentially be viewed as a judge’s helper, said David R. Cohen, an attorney and longtime special master. In theory, the special master can help with whatever a judge needs.

In what circumstances is a special master usually appointed?

Special masters are most frequently named to sort through documents involved in a court proceeding and examine them for certain types of privileges. The most common of these is attorney-client privilege, but a special master may also be used to detect documents potentially protected by doctor-patient privileges or spousal privileges. The special master would set aside documents protected by these privileges and, with a judge’s sign-off, they would not be used as part of the legal proceeding.

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In this instance, Trump wants a special master to sift through the documents FBI agents recovered from Mar-a-Lago on Aug. 8 and set aside any materials that may be protected for attorney-client or executive privilege (more on executive privilege below). Prosecutors also said in court filings that they had a “filter team” set aside any of the seized documents that could be protected by attorney-client privilege.

But special masters could also be appointed in sprawling legal cases, to help the judge assess potentially massive amounts of information collected through the legal discovery process — even if the special master search has nothing to do with privilege issues. And in class-action cases with huge monetary settlements, a judge may appoint a special master to determine who should receive money and which lawyers should get paid through the settlement.

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What is executive privilege?

Executive privilege is a power that presidents can assert to shield communications from courts and Congress on the theory that this privacy will enable open and honest discussion within the White House or executive branch.

The Justice Department has argued that Trump is no longer president and can’t assert this privilege. Government lawyers have also argued that, even if he had executive privilege, Trump couldn’t shield information from the Justice Department since it is also part of the executive branch.

When granting Trump’s request for a special master, U.S. District Judge Aileen M. Cannon ruled that it’s not clear cut that a former president cannot exert executive privilege in this scenario. Still, it’s unclear what types of materials Trump’s legal team believes would be protected by this privilege.

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What qualifications does a special master need?

There are no set qualifications a special master must have, but the vast majority are attorneys, according to Cohen. The judge would need to select a person who is neutral and whom she trusts.

In some cases, special expertise may be sought. If there is a patent case, for example, a judge may want the special master to be a scientist who has an expertise in a specific area, Cohen said.

After examining the documents, the special master would typically submit his or her findings and recommendations to the judge.

In the case of the Trump document investigation, finding a suitable special master could be difficult, since the Justice Department has said in court filings that the president had highly classified government documents in his possession in Florida. A special master would likely need to have the required government clearance to view these sensitive documents.

Who pays for the special master?

Typically, both parties would split the cost of a special master. But it’s up to the discretion of the judge — and the judge could order the costs to be split unevenly.

How did special masters come to be?

Special masters began in England hundreds of years ago, Washington Post reporter Paul Schwartzman wrote earlier this week. By the 15th century, British judges were assigning fact-finding work to clerks who were called masters, Amalia Kessler, a Stanford University Law School professor, told him. In the United States, “We called them ‘special’ because they’re not a group of masters associated with a particular court but appointed on a special basis, case by case,” Kessler said.

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