A federal judge in Florida has ruled in favor of former president Donald Trump’s request for a special master to review documents seized from his Mar-a-Lago home as part of a probe into his handling of sensitive government records. At issue is whether he can block prosecutors from making use of documents he says should be protected by some form of legal privilege. The Justice Department had opposed the request. US District Judge Aileen Cannon, nominated to the bench by Trump, also temporarily barred the government from using the trove to develop its criminal investigation into the former president while the review takes place.

1. What’s a special master?

Federal judges have wide discretion to appoint outside experts, known as special masters, to help them manage certain parts of a case. Special masters are sometimes retired judges with firsthand experience overseeing litigation, but they don’t have to be. Reviewing documents to see if there’s evidence that one side isn’t legally entitled to have is one role that special masters can play, but judges tap them to perform a variety of services: they’ve advised judges on novel areas of law, managed mountains of data in complex corporate litigation and overseen the payout of settlement funds. The parties can suggest candidates, but it’s up the judge to choose. Judges also decide who pays for the special master’s services -- it can be a 50-50 split between the parties, but not always -- and sets deadlines for their work.

2. Why did Trump ask for one?

Trump contends that at least some of the documents seized by the FBI during the Aug. 8 search of Mar-a-Lago are privileged, meaning they’re covered by legal protections that make them off-limits to federal prosecutors. Trump has cited attorney-client privilege, which covers communications between lawyers and their clients, and executive privilege, a doctrine that is meant to protect a president’s ability to communicate freely with close advisers. Trump has referenced both of those privileges in accusing federal investigators of abusing their power and seizing documents that they weren’t authorized to take under the search warrant. He asked Cannon to appoint a special master to review the documents and to block DOJ from looking at them in the meantime.

3. How is that usually handled?

In investigations that involve potentially privileged materials, DOJ can bring in a separate group of FBI agents and prosecutors to collect and review evidence to identify and separate any potentially privileged material; the government has said it has already done that for the Mar-a-Lago search. Relying on such a “filter” or “taint” team insulates the primary investigators from being exposed to information that they’re not allowed to see, which could disqualify them or jeopardize a future prosecution.

4. How do some cases end up with special masters?

Defendants who don’t want the government in charge of the privilege review can ask a judge to bring in a special master. That happened during the criminal investigation into ex-Trump lawyer Michael Cohen. The judge in that case explained that he had “faith” that prosecutors’ integrity was “unimpeachable,” but that bringing in a special master would help with the “perception of fairness” given the unique circumstances at play. Citing the Cohen case, prosecutors in New York made a preemptive request to a judge to appoint a special master after seizing materials from two other Trump lawyers, Rudy Giuliani and Victoria Toensing. Trump highlighted those cases in his pitch for a special master in the records case. 

5. Was Trump’s request unusual? 

A request for a special master isn’t unusual, but a couple of things set Trump’s situation apart. Very few criminal investigations potentially implicate executive privilege, so bringing in a special master to consider that question would be a rarity. There’s also the timing: Cohen went to court to try to stop the government from looking at his documents almost immediately after the search. DOJ went to court a few days after the Giuliani and Toensing searches, and government lawyers made clear that they hadn’t started looking at seized materials. Legal experts also questioned why Trump didn’t lodge his special master request with the federal magistrate judge who had signed off on the warrant and was already presiding over a case related to the release of warrant materials; filing a new case meant Trump landed before a different, randomly-assigned judge on the Florida bench. DOJ was against using a special master at all, but argued that if the judge goes that route, it should be someone with top secret security clearance, another unusual element.

6. What did the government say?

The Justice Department argued during the hearing that Trump has no right to a special master review, and that allowing one now would be unprecedented because the seized documents do not belong to him. If the judge does entertain his request, they say the appointment of a special master is “unnecessary” given the processes already in place to scan for privilege issues and would get in the way of a parallel intelligence review. They’ve also made clear that Trump is too late to stop at least the filter team from looking at documents. In an Aug. 29 filing, DOJ officials wrote the special team had identified a “limited set” of seized materials that “potentially” include information covered by attorney-client privilege, and were figuring out what to do with that. The filing didn’t mention executive privilege, but did say that there were other eyes on the documents -- that DOJ and the Office of the Director of National Intelligence (ODNI) were reviewing the classification status of the documents and that, separately, ODNI was analyzing potential national security risks if the classified material found at Mar-a-Lago got out.

7. What did the judge say? 

Cannon ruled that the special master could review the seized materials for both attorney-client privilege and executive privilege, saying that the Supreme Court had not settled the question of whether a former president could assert executive privilege against the administration of the sitting president. Cannon also questioned the Justice Department’s contention that Trump has no property interest in any of the presidential records seized from his residence because they belong to the government -- not him. “That position calls for an ultimate judgment on the merits as to those documents and their designations,” Cannon said, adding that the government had already conceded that the search had resulted in the seizure of more than 500 pages of documents potentially covered by attorney-client privilege. The judge said in her Sept. 5 ruling that the government could continue to access the documents -- many of them bearing the nation’s highest classification markings -- for the limited purposes of conducting a national-security review that’s already underway.

8. How could this affect the investigation?

Cannon’s suggestion that the Supreme Court may need to decide the issue points to the possibility of significant delay in the case. That could prove a major setback to the Justice Department, which argued in court that the investigation was urgent and time-sensitive. Cannon in the ruling said the exact details of the review process will be decided after both sides submit proposals. She asked the Justice Department and Trump’s lawyers to submit candidates for special master by Sept. 9. A special master advises a judge, but doesn’t make the final call. They typically submit a report to the judge with recommendations -- in a case like Trump’s, laying out what they think should happen to disputed documents -- and the parties could then get a chance to weigh in before the judge rules.

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