Former president Donald Trump is embroiled in litigation in federal court following the lawful search of his Palm Beach home by FBI agents. The latest development is the decision by a Florida federal judge to appoint a special master to review materials seized during that search. This saga is interesting, but is it important?
Certainly, some of the materials seized in the search are very important. Highly classified information found in Trump’s home was, at best, mishandled. At worst, that information could have been compromised in ways that endanger intelligence sources and put at risk sophisticated techniques used by the intelligence community to collect information that safeguards our nation. It is a very good thing that the FBI retrieved this information from the former president’s home, where it manifestly did not belong.
Certain legal issues connected to the search are also important. Attorney-client privilege and executive privilege are real things and the determination of whether either privilege applies, in this case, is important. There are strong arguments that executive privilege does not apply here and only a very small number of seized documents might be cloaked in attorney-client privilege. Those questions need to be resolved and someone needs to resolve them. But how should it be resolved?
When the Justice Department sought permission to execute the search warrant, prosecutors knew they might seize attorney-client-privileged documents. Those prosecutors, therefore, asked for permission to set up an internal “filter” team to screen out potentially privileged documents from the investigative team. Someone had to screen for that stuff — stuff the investigative team might not be entitled to see. Although that filter function was originally performed by a separate team of government prosecutors — as the warrant permitted — Florida federal district Judge Aileen Cannon subsequently ordered that process to be shepherded by an outside neutral third party. We call that neutral third party a special master.
The order Cannon issued is flawed in numerous ways, including that it makes it much harder for the intelligence community to assess the damage done by the mishandling of classified information. Why? Because Cannon unwisely precluded the FBI from fully assisting in that intelligence community damage assessment. Her order fundamentally misapprehends how damage assessments are conducted and unnecessarily hamstrings both the intelligence community and the FBI in this important work. The Justice Department asked her to reconsider this portion of her ruling and signaled its intent to appeal her poorly reasoned order. However, late on Thursday, Cannon approved Trump’s request for a special master, naming federal Judge Raymond Dearie to serve as the neutral third party. She also refused to reconsider her order.
In the grand scheme of things, the special master dispute is a relatively small skirmish in a larger battle (to say nothing of the metaphorical combat that may ensue if the former president is charged with a crime.) Criminal investigations — and the charges that often flow from them — have a long span. We may not be at the very beginning of this contest, but we are certainly not at the end — and we have some distance to go.
Nevertheless, we seem to have spent an inordinate amount of time debating the special master question. Is it good? Is it bad? Is it warranted?
From the Justice Department’s perspective, it slows their review of lawfully seized documents and gums up the damage assessment. They have said it is bad. I agree.
From the Trump team’s perspective, they want a special master in part, no doubt, because it slows the Justice Department’s review of certain seized documents and thus its investigation. Investigations seldom get better with age, as the Trump team must know.
But how should we think about the appointment of a special master? Is it important? At the very least, it may lend an imprimatur of neutrality to the review. Further, even with a special master, the investigative team should ultimately get the materials to which it is entitled. This part of the criminal investigation will inevitably resume, and the delay attributable to the appointment of the special master will hopefully be limited.
Cannon got a lot wrong in her order, and the Justice Department is right to challenge it. But the appointment of a special master will likely prove to be more of an irritant than an enduring roadblock. It is an interesting issue, but not all that important — at least not in the long run.
Chuck Rosenberg is a former U.S. attorney for the Eastern District of Virginia and for the Southern District of Texas. He previously served on the staff of two FBI directors and two attorneys general.