- On Thursday, the DOJ appealed the ruling for a special master to review files Trump brought to Mar-A-Lago.
- The case has moved into uncharted territory of national security, experts told Insider.
- A special master task would involve reviewing more than 11,000 files, and could delay the investigation.
The saga to track down and analyze the government documents that former President Donald Trump hid in Mar-a-Lago took another turn Thursday after the Justice Department appealed a federal judge’s decision to issue a special order. master to review specific secret files.
Trump’s case and the move to appoint a special master opened an unprecedented Pandora’s box of concerns for national security experts.
And at 11 a.m. Friday, the parties submitted their list of nominees, including three former judges and a former defense counsel, to the Florida governor.
If indeed a special master is chosen, he or she must have the highest national security clearance level in the US. Ultimately, judges appoint special masters based on their expertise, so in this case, the special master should be deeply embedded in the realm of national security, experts told Insider.
“The universe of people who have the highest powers but also have expertise in executive privilege and attorney-client privilege is small,” Larry Pfeiffer, a national security expert who runs and previously led the Hayden Center at George Mason University, said. the White House Situation Room to Insider.
The move to name the special master has raised more questions than answers about how the probe will turn out. Here’s how experts break it down.
How are special masters usually used?
A special master’s degree is typically selected as an independent third-party investigator in lawsuits where attorney-client privilege needs to be reviewed, in specific cases such as when a law firm has been robbed.
Special masters are also used in cases where a class action lawsuit needs to be settled or to determine doctor-patient and marital privileges for divorce or family law proceedings.
What a special master could do in the case of the DOJ
The greatest impact of applying for and appointing a special master may simply be time.
“Because there were so many classified documents in this material, this was collected from Mar-a-Lago, and because of the sensitivity of the documents, whoever they choose will either have to have all the approval at that level, or they’ll have to go through the clarification process, which is unlikely to happen or may take several months,” Pfeiffer said.
As it stands, the special captain would be tasked with reviewing all documents lugged to Mar-A-Lago, including the 11,000 general documents and the 100 documents marked classified, with the aim of determining whether a of the documents are protected by attorney-client privilege or executive privilege.
The special captain would then present their findings to the judge — and both sides indicated Friday that they would review the report for possible objections before it is presented to the judge.
The DOJ and Trump’s team disagree over the classified documents in the treasury, which prosecutors say should not be subject to review by a special master.
If the nominee has to review classified documents, they’ll likely need a top-secret special compartment and intelligence clearance, TSSCI, the highest level of national security clearance, Pfeiffer told Insider.
Who pays the bill for the special master?
According to the Washington Post, parties typically split the cost of hiring a special master, although that decision is ultimately up to the judge.
On Friday, Trump’s team called on the parties to split the costs, while prosecutors said the bulk of the costs should be paid by the former president as his team asked for the special master.
What’s Behind Trump’s Claims About Executive Privilege?
Trump denies wrongdoing and said the DOJ’s actions are political. His legal team asked a special master to parse documents from the Mar-a-Lago materials that could be protected by attorney-client privilege or executive privilege.
“Trump’s team will most likely try to claim administrative law over any documents they believe could compromise White House confidential communications,” Mark Rozell, dean of the Schar School of Policy and Government, told the George Mason University, to Insider. “Executive privilege protects the president’s right to receive candid advice without fear of disclosure — the problem is that citizen Donald Trump’s claim to an ongoing need for secrecy is difficult to prove.”
Last week, Rozell himself was identified by the National Security Counselors as a potential candidate to become a Special Master after Trump’s request, but he turned down the nomination.
The DOJ’s investigation is focused in part on whether Trump violated the Espionage Act by moving the national security equipment to Mar-A-Lago.
The selection process itself can affect intelligence relationships
Pfeiffer added that the quest to choose a special master and then have them review the documents could take months and generally delay the investigation. During that period, certain intelligence relationships and resources that the US has built up may suffer as the department cannot be certain of the whereabouts of their materials and who they may have been shared with.
Pfeiffer said he has never seen such a disruption in the flow of classified documents in his White House experience, especially since lives could be at stake.
“I ran the Situation Room, so I was very familiar with how paper flowed in the White House. And it flows the way it does in many large organizations where data needs to be tracked and preserved,” Pfeiffer said. “There’s a whole bunch of people who are regular White House employees and something went wrong. Either they were horribly intimidated by the Trump White House, or there was rampant abuse of the system.”