What to watch for in Friday’s proposals for the Mar-a-Lago search special master review
While the appeal plays out, prosecutors are also asking that its review of classified documents be allowed to continue separate from the special master review. The parties have been instructed by US District Judge Aileen Cannon to weigh in on the department’s arguments about the documents in the filing due Friday.
With the Friday submission, the Justice Department and the Trump team will also be addressing questions about the review’s logistics that are wonky, but stand to carry significance over how quickly the review will move and how much it will hinder the criminal investigation into the handling of documents from Trump’s White House.
Cannon, a 2020 appointee of Trump who granted Trump’s request for the review, has asked the parties to file jointly. But that doesn’t mean the parties will be in agreement. Where they disagree, the judge has asked them to identify those disagreements.
Here’s what to watch for:
Who do the parties nominate as special master?
The Justice Department has previously said that, if the reviewer is to handle classified materials, he or she should “already” have a top-secret clearance — a requirement the Trump team didn’t oppose in earlier filings.
It’s also possible that the parties put forward candidates who do not have active security clearances but could go through the vetting process for one very quickly. Recent exiles from the government would fit the bill, as would former judges, who may not have clearance but would have been trusted with classified materials as part of their service on the bench.
But notably, the Justice Department asked Thursday that it not be required to share the classified materials it obtained with the special master — which may negate the need for a clearance.
As for legal expertise, reviewing for attorney-client privilege is the usual job of a special master. But the judge’s order that executive privilege be part of what the special master looks at puts the review on uncharted territory. There is also lots of disagreement about the doctrine itself, though many legal experts are extremely skeptical of Cannon’s view that it should play a role here.
One thing to look out for when the potential candidates are revealed is whether they have any experience litigating executive privilege, either on the federal side (where they would have likely pushed a broad view of its scope) or on the side of a party — such as Congress — seeking information from the executive branch (where they would have likely argued in favor of a narrow interpretation of the privilege).
What’s the proposed scope of the review?
Cannon’s Monday order signaled she wanted the special master review to help settle disputes over whether certain seized records were personal or presidential records, and whether the personal items of Trump’s that were seized have evidentiary value.
The parties may sketch out how they believe the special master should make those determinations. DOJ has argued previously that its investigators should be allowed to hold on to certain personal items of Trump to the extent they provide evidence relevant to the statutes the government is investigating. (An inventory filed by the government details classified records being stored in boxes also containing Trump’s clothing, gifts and press clippings.)
While the special master’s job is to provide the court advice, the call on those questions will ultimately be up to the judge.
Thursday, DOJ added it plans to provide Trump with copies of all the unclassified documents that were seized and “that the government will return Plaintiff’s personal items that were not commingled with classified records and thus are of likely diminished evidentiary value. “
Cannon also declared a need for the special master to review for potentially privileged items. How a special master should approach attorney-client privilege is a well-developed area of law, though the judge has cast doubt on how the department was approaching the attorney-client privilege review when it was conducted with an internal “filter” team.
The judge also wants the special master to conduct a review for materials potentially covered by executive privilege, though her Monday order gave little guidance how that review would work in practice.
What does the Justice Department say about executive privilege?
How the special master should approach executive privilege could be the most contentious area of the joint filing.
The Justice Department has argued that there is no role for executive privilege to play in segregating the materials that should be withheld from investigators. Prosecutors may be disinclined to go into any detail over how it should be considered on Friday. They have previously argued in the case that the privilege is designed to protect the material from being disclosed to parties outside the executive branch.
The records that were seized at Mar-a-Lago by the executive branch are being disclosed within the executive branch in an executive branch function, the prosecutors have argued. By some definitions of the privilege, it could cover most or all the government records obtained in the search.
But the prosecutors have argued that there is no circumstance where a former president could be successful in asserting executive privilege over classified documents that are the subject of a criminal probe.
Trump’s lawyers, meanwhile, have said little about which kinds of government records he would seek to assert executive privilege over and how he’d expect the special master to filter out the materials for him to do so.
How the parties see the logistics of the review operating
There are logistical questions around the proposed special master review as well.
For instance, Cannon wants proposals for the review’s schedule and for how the special master should be compensated. There may be some area of agreement between the parties for how the review should operate.
The Trump team previously said it “generally” agreed with a request by the DOJ that certain steps in the review process be shortened to expedite the filter, though it did not weigh in on the specific deadlines the DOJ put forward. The department told the court earlier in the litigation that the review should be done by the end of September.
Trump’s lawyers in earlier filings also expressed some agreement with how the parties should be allowed to communicate with the court ex parte — i.e., without the opposing party being involved. But the Trump lawyers laid out in previous filings additional protocols for the review to which the Justice Department may take objection.