There is nothing "special" about a special master
and why appointing one could doom Trump on appeals
Trump’s lawyers appear to have won something after filing a legal motion in response to the search of Trump’s Mar-a-Lago resort. They asked for a special master to review the seized documents and determine if the government has a legal right to what was seized.
A little late, it is worth noting, as it was filed two weeks after the search.
U.S. Judge Aileen Cannon issued a two page ruling telling the government to respond and scheduled a hearing for September 1st. Despite Judge Cannon telling both sides not to read too much into her ruling, the right-wing noise machine started acting like they had taken a beachhead, legally speaking.
Trump’s lawyers would have been better off just making a list of things the FBI may have taken by accident and asking for their return.
Unfortunately, Trump has penchant for viewing anything that was government property as belonging to him has been well-documented1. (In 2018, Trump took artworkwork from the ambassador’s residence in Paris.2)
Putting aside the above and Trump’s legal strategy of delay, bully, and appeal; the need for a special master might be a bit premature. Joel Lawson, a long-time friend and political analyst, pointed out that the privilege review of the documents is not even done yet as a key paragraph of the government’s response points out.
Should Judge Cannon appoint a “special master”, Trump and his band of lawyers ought to consider some stark political and legal realism:
First, it won’t stop the investigation. - The investigation began back in January with a National Archives and Records Administration (NARA) referral. After 15 boxes were retrieved from Mar-a-Lago in January and 184 documents contained therein were identified as classified, highly classified, and top secret; it was “game on” for the FBI. Nothing is going to stop that.
Second, it won’t prevent indictments, plural. - While Donald Trump is clearly the target of the investigation, other people are involved in this. Federal prosecutors, much more that state and local ones, rely heavily on getting the minions in a criminal conspiracy to drop dime on those higher up.
Third, the judge sees a ring-fenced case around Trump. - If a criminally accused person won’t plea and seems inclined to go to trial, the judge will give the defense every favorable ruling it can to preclude successful appeals. Should Judge Cannon approve a special master, it will be simply to stunt Trump’s standard “appeal it to the Supreme Court” approach to legal problems.
Four, the “special master” is likely going to come from the foreign intelligence surveillance court. - While a privilege review is clearly ongoing with regard to what was seized from Mar-a-Lago, having a special master review “top secret” documents, including some related to human intelligence (i.e. spies), will require both legal expertise and someone vetted to see such information. That person will likely come from the Foreign Intelligence Surveillance Court and not one of them was appointed by Donald Trump3.
The search of Mar-a-Lago earlier this month was, and ought to be viewed, as damage mitigation. Unfortunately for Trump, the so called “raid” was preceded by an avalanche of evidence rolling across the political landscape.
https://www.spokesman.com/stories/2022/aug/12/documents-removed-from-mar-a-lago-appeared-to-incl/
https://slate.com/news-and-politics/2020/09/trump-art-ambassador-home-paris-fakes-replicas.html
https://www.fisc.uscourts.gov/current-membership-foreign-intelligence-surveillance-court