In September. 5th, U.S. District Court Judge for the Southern District of Florida Aileen M. Cannon has appointed the special master who will review more than 11,000 records seized from the FBI during its investigation of the former presidential residence of Donald Trump. Mar-a-Lago estate.
The ruling basically delegates to an unspecified third party ability to choose which documents the government may and cannot utilize in its probe of the ex-president.
Many lawyers think this is a stunning development. Before we go into the reasons we’ll discuss the definition of a special master and why Judge Cannon’s choice of one in this case is controversial.
What is a Special Master?
Special masters are an individual person appointed by a judge to assist in the proceedings. They can be, although not all, judges. Masters are able to do all the things judges can perform including making decisions on the basis of evidence, and settle dispute between two parties over documents. They may also provide suggestions to judges regarding facts and conclusions.
The courts appoint masters in cases where they are unable to effectively or promptly manage a case. For instance, some cases are involving intricate technical or scientific questions which an expert might be better placed to tackle as opposed to a lawyer or judge. Additionally, there are cases that involve huge volumes of papers that a busy judge may be unable to handle with (particularly in the event of an enclave of lawyers who are fighting over the documents). For cases like these the court may choose to appoint a special judge for assistance.
What is this special master What is This Master Supposed to Do?
In her ruling, Cannon ruled that the special master should:
- Check the property that was confiscated by the federal government
- Make recommendations and manage the assertions of executive and attorney-client privileges
- Examine Trump’s claim for restoration of property that he claims is his
Cannon also stayed off the federal government’s examination of confiscated documents for investigation reasons until the master is given the opportunity to examine the documents. If the master decides that these documents are confidential that means the government cannot use the documents in its legal investigation into Trump.
Executive Privilege Constraints
A particular point of contention is executive privilege. Executive privilege shields the president from the obligation to reveal the contents of confidential conversations with his executives in his subordinates. This idea is based upon the separation of powers to perform their duties Presidents require honest, open advice from their advisors and do not have to be concerned about judicial or congressional scrutiny.
Trump states that at minimum one or two of the documents confiscated could be protected by executive privilege. In contrast the Biden administration has stated that Biden waived any privilege that might be applicable to the documents. Biden has waived any privileges which could apply to documents confiscated from the FBI.
The question of whether or not a ex-president can invoke executive privilege over objections to the current president isn’t a question that has been discussed before (more about that later) however, Cannon was an official of the Trump administration, Trump appointed official, has sided against Trump’s legal team for the time being. The decision has angered Democrats and the government and a number of legal analysts. Some Republicans such as William Barr (who served as attorney general under Trump) are not happy with Cannon’s choice.
What is the reason this is such a Major Deal?
There has never been a time when ever FBI as well as the DOJ issued a warrant for a search at the residence of a former president. We don’t even know the contents of the documents Trump brought to Mar-a-Lago after leaving at the White House. However, according to Washington Post, at least one of the documents seized might have been connected to an arsenal of nuclear weapons of the foreign state. If Trump was to have a mishap with classified information, the world could be forced to learn from the experience.
Legal Impacts
The review of the special master’s report is an up-to-date legal problem. A court of appeals has not yet ruled about whether an ex-president has the right to assert executive privilege against the wishes of the president in office. Due to the stakes involved there is a chance that Supreme Court may have to make a decision.
The Political Impact
Democrats are currently holding a small majority within the House of Representatives. The Senate is equally split between Democrats as well as Republicans. According to polls, the midterm elections could be a toss up. If Trump charged prior to the midterm elections, Republicans might lose the possibility of gaining the control of Congress.
The appointment of the special master is in conflict with the ongoing federal criminal probe into the ex-president. If the order of Cannon is held as is and the master has the time needed to carry out a privilege audit The government’s probe could take longer to conclude after November elections. This delay may affect the power balance within Washington.
What happens next?
Cannon directed both parties to submit an ensemble list of possible special master candidates , as well as an elaborate proposal for an order that outlines:
- The duties and responsibilities of the particular master
- There are no express restrictions on the master’s power
- The capacity of the specific master to interact with courts or individuals without the other side
- The schedule of the master’s special review
- How and how much the master’s salary
The court allowed to the parties until Sept. 9th to submit their petitions. As usual, the court would review the arguments of the parties and make a specific appointment order. There isn’t anything normal in this particular case.
The day of Sept. 8th, the day prior to the date that joint submissions were due The DOJ submitted its appeal notice. This means that on the 11th U.S. Circuit Court of Appeals will examine Judge Cannon’s ruling and decide if it is a valid decision. It’s difficult to know the outcome of is expected from the 11th Circuit will do, however we’d be negligent not to not mention that six out of the twelve judges of the court were appointed by the then-President Trump. We’ll wait and see.