Briefing

Will a special master slow the Trump investigation?

A judge's order, and the controversy surrounding it, explained

A federal judge may have given Donald Trump some breathing room as he dodges an investigation into his post-presidential handling of classified documents. Judge Aileen Cannon — a Trump appointee — on Monday said a special master should review documents seized last month from Mar-a-Lago by the FBI. Cannon also ordered the Justice Department not to use the seized documents for investigative purposes until the special master's work is done.

That could slow down the investigation, but it may have broader implications. "Her ruling seemed to carve out a special exception to the normal legal process for the former president and reject the Justice Department's implicit argument that Mr. Trump be treated like any other investigative subject," The New York Times reports. Why did Cannon agree to the special master? What does it mean for Trump? Here's everything you need to know: 

Why was a special master appointed?

Part of the issue is that the FBI didn't just seize classified documents from Mar-a-Lago. Agents took "medical documents, correspondence related to taxes, and accounting information," CBS News reports, as well as "500 pages of material that may be subject to attorney-client privilege." It's not unusual to exempt such items from scrutiny if they're not directly related to the investigation at hand. 

But — as with all things Trump — there's a wrinkle: Cannon also said the master should review the seized materials to determine whether they're covered by executive privilege. Why is that notable? Trump isn't the executive anymore. (This meme illustrates the conundrum.) But the judge said the Supreme Court has "not settled the question of whether a former president could assert executive privilege against the administration of the sitting president," The Washington Post notes. 

What does a special master actually do? 

The master is a "third-party attorney, from outside the government," who will be "brought in to review the materials that were taken from Trump's home and resort in Florida," CNN reports. (That process is separate from a review of the potential national security implications by the Office of National Intelligence.) Basically, they'll sift through the stuff seized by agents and make a determination whether any of it is off-limits to government scrutiny — because it's privileged, or in the case of medical documents, both unrelated and personal information. 

Why is the judge's order so controversial?

We've already mentioned the "executive privilege" controversy. But there are at least three other reasons:

  • Again, she's a Trump appointee. "Cannon has a reputation as a far-right jurist and a Trump-appointed Federalist Society member," commentator Steve Benen writes for MSNBC. While "federal judges routinely handle matters that involve the president who put them on the bench," CNN points out, it's also true that "Trump has a history of politicizing the judicial branch … and openly saying that he expects his appointees to do his legal bidding." For some observers, that combination of circumstances has raised red flags.
  • She suggested Trump might have special status as a former president. "As a function of plaintiff's former position as president of the United States, the stigma associated with the subject seizure is in a league of its own," Cannon wrote in her order. "A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude." Thus, the special master. Ronald S. Sullivan Jr., a Harvard Law School professor, said he found that rationale "deeply problematic." He told The New York Times: "This court is giving special considerations to the former president that ordinary, everyday citizens do not receive."
  • It's not clear she can actually prohibit the Justice Department from using the material for investigative purposes. "To my mind, this is one of the weirdest parts of Judge Cannon's order," law professor Orin Kerr wrote Monday in a Twitter thread. That order "amounts to a judicial takeover of the executive branch's investigation. I don't see how a federal judge has the power to do that."

How will the Justice Department's investigation be affected? 

It won't speed things up, that's for sure. "Cannon's suggestion that the Supreme Court may need to decide the issue points to the possibility of significant delay in the case," Zoe Tillman notes at Bloomberg. Both sides have a deadline of Sept. 9 — this Friday — to submit candidates for the special master post. What's unknown: How long the review will last. It can be a complicated process: After the master finishes sifting through the documents, they "typically submit a report to the judge with recommendations … and the parties could then get a chance to weigh in before the judge rules."

The Justice Department might appeal Cannon's ruling. Or it might not. Speed would be a major consideration either way. "It might seem faster to simply … get on with appointing a special master," Norman L. Eisen and Fred Wertheimer write at Slate. Then again: "Nobody knows how much time that review will require." The longer the wait, the greater the pressure — the 2024 presidential campaign cycle will start when this year's midterm elections are over, and Trump is a good bet to run again. The clock is ticking on the Justice Department's investigation.

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