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What does a special master do? We explain: NPR

Law enforcement officers stand outside the federal courthouse in West Palm Beach, Florida on August 18.

Lynne Sladky/AP

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Lynne Sladky/AP

Law enforcement officers stand outside the federal courthouse in West Palm Beach, Florida on August 18.

Lynne Sladky/AP

The first legal step former President Donald Trump took after FBI agents executed a search warrant at his home last month was to ask a federal court to appoint a special master to review the documents he they had grasped.

This request has spawned a whole new saga, with the Justice Department arguing that such an appointment is not only unnecessary, but would “significantly harm important government interests, including national security interests.”

U.S. District Judge Aileen Cannon, who has been open to granting Trump’s request, said Thursday she would rule later (but gave no indication of when that decision might come).

In the meantime, it is worth considering the question: what exactly is the role of a special master in general, and how the potential appointment of such might have a specific impact on this case?

“A special master is really kind of a fancy name for the judge’s aide,” says David Cohen, a special master who serves in federal cases, including opioid litigation.

He says morning edition‘s Rachel Martin that special masters, who are usually lawyers, can be appointed when judges are seized with complex cases — and that Trump is far from typical. Their conversation has been condensed and edited for clarity.

Interview Highlights

What is a complex case?

Obviously, this will not happen when it is a simple car accident, but in a case where the subject is complicated – for example, an antitrust case or a patent case – or the case itself is just hugely important – like the BP oil spill case or a national opioid litigation – or even just a case where the parties can’t even really say hello to each other without arguing and that just requires a lot of scrutiny judicial, what a federal judge will sometimes do is appoint a special master just to help the judge oversee the case because there’s a lot to do and judges have limited judicial resources, limited time.

What qualifications does a special master need?

It’s not always a lawyer. For example, in a patent case, what a judge might need most is someone who knows the technology involved, but…it’s usually a lawyer. I guess the main qualification is someone who can stay neutral, which is not easy. It’s a bit difficult to refresh your neutrality every day. You can’t come in and be a judge or a special master with an agenda or really want one side to win, you have to look at all the facts and the evidence and what the parties argue, and apply the law to the facts and determine what is the correct outcome, regardless of who appears before you.

Do special masters always try to draw conclusions?

It depends…if the judge asks me to provide a report and recommendation on a motion, then yes, I will say, “Judge, this is how I think you should rule”, and I will write an order or a proposal order, or I will submit my opinion under my signature, which the parties can then accept or appeal to the judge. And in other cases, it is sometimes enough to be present to be able to arbitrate while the parties are arguing.

What role could a special master play in Trump’s case?

In this case before Judge Cannon, it looks like the judge is going to appoint – if that happens – appoint someone who is going to make calls – yes or no; it’s privileged, it’s not — [and] submit a report to the parties. The parties would then have the possibility of opposing, that is to say of appealing to the judge, and the latter would then rule new, which kind of means start at the beginning. But everyone knows that most of the time, if the special master knows what he’s doing, the judge will accept the recommendation.

What makes Trump’s case unique?

This is such an unusual case. In most cases where I’ve been appointed, I’m asked to oversee discovery, I’m asked to adjudicate attorney-client confidentiality issues. There really aren’t any cases where the former president of the United States has documents taken from his house and not only invokes solicitor-client privilege – which is relatively easy, there are all sorts of case law on this – but executive privilege, which has not been the subject of much case law.

Could the appointment of a special master slow down the investigation by the Ministry of Justice?

It’s very likely that if Judge Cannon appoints a special master, that special master will have to do a lot of legal research, come to an understanding of how to apply the law, and look into some rather unusual facts. So that has a chance to slow things down. But on the other hand, the judge could provide for a kind of parallel processing, where the examination continues by the Ministry of Justice while the special master also examines the documents.

This interview was produced by Kaity Kline and edited by Simone Popperl.

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