While the appeal progresses, prosecutors are also asking that the review of the classified documents be allowed to continue separately from the special main review. The parties were instructed by U.S. District Judge Aileen Cannon to consider the department’s arguments about the documents in a deposition expected Friday. In Friday’s filing, the Justice Department and the Trump team will also address questions about the logistics of the review that are irrelevant but will matter to how quickly the review moves and how much it hinders the criminal investigation into its handling documents from the Trump White House. Cannon, a Trump appointee in 2020 who granted Trump’s request for reconsideration, asked the parties to file a joint petition. But that doesn’t mean the parties will agree. Where they disagree, the judge asked them to identify those disagreements. Here’s what to look out for:
Who do the parties nominate as special master?
The unique circumstances of the Mar-a-Lago search, combined with Cannon’s very vague mandate to satisfy Trump’s request for a special master, make the ideal candidate for the job a complicated formula.
The Justice Department has previously said that if the judge is going to handle classified material, he should “already” have a top-secret clearance — a requirement the Trump team has not objected to in previous filings.
It’s also possible for parties to nominate candidates who don’t have an active security clearance but could get through the vetting process for one very quickly. Recent government exiles would fit the bill, as would former judges, who may not have been cleared but would have been entrusted with classified material as part of their service on the bench.
But the Justice Department asked Thursday not to be required to share the classified materials it received with the special master — which may negate the need for a warrant.
As a matter of legal expertise, the attorney-client privilege examination is the usual business of a master’s expert. But the judge’s order that executive privilege is part of what the expert examines puts the criticism in uncharted territory. There is also much disagreement about the doctrine itself, although many legal experts are extremely skeptical that Cannon’s view should play a role here.
One thing to look for when the potential candidates are revealed is whether they have experience in judicial executive privilege, either on the federal side (where they likely would have advanced a broad view of its scope) or on the one-party side — like the Congress — seeking input from the executive branch (where they likely would have argued for a narrow interpretation of the prerogative).
What is the proposed scope of the review?
Cannon’s order on Monday signaled that she wanted the special master review to help resolve disputes over whether certain seized records were personal or presidential records and whether Trump’s personal items seized have probative value. The parties may outline how they believe the special master should make these determinations. The Justice Department has argued in the past that its investigators should be able to keep some of Trump’s personal items to the extent they provide evidence related to the statutes the government is investigating. (An inventory filed by the government details classified files stored in boxes that also contain Trump’s clothing, gifts and press clippings.) While the special master’s job is to provide the court’s advice, the call on these questions will ultimately rest with the judge. On Thursday, the Justice Department added that it intends to provide Trump with copies of all unclassified documents seized and “that the government will return plaintiff’s personal items that have not been combined with classified records and therefore have potentially reduced probative value.” Cannon also stated the need for the special master to review for possible privileged items. How a special master should approach attorney-client privilege is a well-developed area of law, although the judge has questioned how the department approached attorney-client privilege review when conducted with an in-house panel “filter”. The judge also wants the special master to conduct a review of materials potentially covered by executive privilege, though Monday’s order gave little guidance on how that review would work in practice.
What does the Department of Justice say about executive privilege?
How the special master should approach executive privilege could be the most contentious area of the joint filing. The Justice Department has argued that there is no role for executive privilege to play in segregating materials that should be withheld from investigators. Prosecutors may not be willing to go into any detail about how it should be tried Friday. They have previously argued in the case that the privilege is intended to protect the material from disclosure to parties outside the executive branch. The records seized at Mar-a-Lago by the executive branch are disclosed within the executive branch at an executive branch function, prosecutors argued. Under some definitions of the privilege, it could cover most or all government records obtained during the search. But prosecutors have argued that there is no circumstance where a former president could succeed in asserting executive privilege over classified documents that are the subject of a criminal investigation. Trump’s lawyers, meanwhile, have said little about what kinds of government records he would seek to claim executive privilege and how he would expect the special master to sift through the materials to do so.
How parties see the logistics of review working
There are also logistical questions surrounding the proposed special major revision. For example, Cannon wants suggestions on the schedule of the review and how the expert master should be compensated. There may be some scope for agreement between the parties as to how the review should operate. The Trump team previously said it “generally” agreed with the Justice Department’s request to shorten some steps in the review process to expedite the filter, though it did not weigh in on the specific timelines the Justice Department proposed. The department told the court earlier in the trial that the review would have to be done by the end of September. Trump’s lawyers in earlier filings also expressed some agreement on how parties should be allowed to contact the court ex parte — that is, without the opposing party being involved. But Trump’s lawyers presented in earlier filings additional protocols for the review that the Justice Department may object to.
