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Special masters and Trump’s Mar-a-Lago documents: What you need to know

The Justice Department and Donald Trump’s lawyers have until Friday to submit a joint list of potential special masters

A page from the order granting a request by the legal team for former president Donald Trump to appoint a special master to review documents recovered by the FBI during a search of his Mar-a-Lago estate. (Jon Elswick/AP)

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 U.S. District Judge Aileen M. Cannon to appoint a special master to examine all the documents seized by the FBI in an Aug. 8 search, to see if any should be kept from investigators.

On Monday, the judge granted Trump’s request.

The Justice Department says it intends to appeal Cannon’s order. Prosecutors have asked her to exclude the classified documents from any potential special-master review of the material taken by the FBI, so they can keep working to determine how national security has been impacted by the removal of the documents from government custody and whether any classified material remains unsecured.

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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 separate 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 because it is also part of the executive branch.

When granting Trump’s request for a special master, 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, because 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 probably 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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