Former U.S. President Donald Trump’s residence at Mar-a-Lago, in Palm Beach, Florida, was photographed on August 9, 2022.
On August 8, 2022, FBI agents conducted a search of the Mar-a-Lago compound former President Donald Trump calls home. They were armed with a search warrant and were seeking, in large part, presidential records and classified materials that he had unlawfully taken with him at the end of his term. While unprecedented insofar as it involved a former president, the search itself was procedurally routine, as was the warrant process. What followed next was far from routine. Much of this has been recounted in numerous ways by numerous experts, and so I will not repeat it here. The most recent development, however, is itself relatively unprecedented: Judge Aileen Cannon granted Trump’s motion to appoint a Special Master to review all of the records seized in the search. While others have broken down the order in question, I’m going to look forward to what comes next and what consequences, both intended and unintended, are likely in the next few weeks to occur as a result of this order.
For a little background, a Special Master is sort of like an expert witness for the judge. They owe no loyalty to either the former President or the Government, and they will swear an oath to act in an objective and unbiased manner. This Special Master will go through all of the items seized by the FBI and evaluate them to decide if they are protected by either attorney-client privilege or executive privilege. Trump had asked for the Special Master to also look at national security classification (e.g., Confidential, Secret, or Top Secret) and Presidential/personal issues (e.g., if a record is a Presidential record which belongs to the Government under the Presidential Records Act or a personal record which belongs to Trump himself), as well as making a vague argument that the Special Master should “identify the real issues” and “place those issues in the proper context,” but Judge Cannon declined to go beyond the two specific privileges. At the end of the evaluation, the Special Master will make a recommendation to Judge Cannon, who will then act on it.
Additionally, while Judge Cannon did agree that the Intelligence Community — acting through the Office of the Director of National Intelligence — could continue to perform its risk assessment to determine what if any national security interests have been jeopardized, she ordered the Government to stop all law enforcement examination of the seized material until the Special Master has completed their review. As for the selection of the Special Master, Judge Cannon directed the parties to confer and file a document with the court by Sept. 9 in which they recommend potential Special Masters and propose the scope of the Special Master’s responsibilities. If the parties cannot agree, they must explain why they hold differing positions, which I anticipate will result in the filing of two competing lists of potential Special Masters. With this background in mind, there are two major paths forward, which will depend largely on whether the Department of Justice chooses to fight or comply with Judge Cannon’s order.
Option A: DOJ challenges the order
In the oral arguments regarding Trump’s motion, DOJ specifically made a point of arguing that if Judge Cannon wished to enjoin the Government from using the seized materials for any law enforcement investigative purposes, she would need to issue a formal injunction under Rule 65 of the Federal Rules of Civil Procedure. While the judge was dubious about this assertion, she ultimately assented. This was a shrewd move by DOJ. As a rule, a party cannot file an appeal to a federal circuit court of any decision made during the course of a civil case until the case is completed, and any attempt to do so — called an “interlocutory appeal” — can generally only be done with the permission of the district judge. However, a statutory exception exists to this rule, in which an order granting an injunction is subject to an interlocutory appeal whether the judge approves or not. In contrast, an interlocutory appeal of an order to appoint a Special Master is only considered a matter of right in some circumstances, and an immediate interlocutory appeal of such an order would likely result in a lengthy fact-specific argument over the procedural detail of whether it could be filed at all, causing a significant delay in the Government’s review of the seized materials. This argument is inapplicable now, however, and should the Government decide to appeal this order to the 11th Circuit, it could do so immediately.
This approach is not without its risks, however. As former CIA litigator Brian Greer discussed on Twitter, federal circuit courts are generally loath to consider new evidence which was not presented to the district judge, which in this case would be any new testimony about the harm that the appointment of a Special Master and the accompanying injunction could be expected to cause to the ongoing investigation. If this is a concern, DOJ might instead choose to file a motion under Rule 54(b) to revise the order in light of new information, attaching a new declaration which would then become part of the record on appeal should Judge Cannon deny the motion, which she likely would. It is generally considered improper to use Rule 54(b) — or any other rule designed to modify a previous decision — to relitigate an argument the parties have already made or to introduce new evidence which could have been introduced earlier.
Furthermore, even though the new testimonial evidence would be in the record, it is quite likely that the Circuit panel would narrowly focus on whether Judge Cannon was within her discretion to deny the motion to revise — which has a fairly high burden of proof — as opposed to deciding if the initial order was correct in the first place, and if the panel reached the second question, it could well choose to ignore the later declaration, making the entire argument over the motion to revise a futile effort that only wasted time. On the other hand, given all the procedural irregularities so far in this case, the panel could also decide to consider the new information, at which point the Government would be in a much better position to win an appeal if the question of investigational harm becomes the deciding factor.
In any case, legally speaking, the Government has a significant chance of prevailing should it appeal Judge Cannon’s order, whether it introduces new evidence or not, and so the only question becomes whether it will be willing to wait for the appeal process to play out before renewing the examination of the seized materials, knowing that the appeal process might well take longer than the Special Master’s review would.
Option B: DOJ follows the order
Should the Government decide that the risk of greater delay outweighs the harm caused by the Special Master review, it is always free to simply let the review happen. However, how that review process would look is unclear, since this situation — where a Special Master would be appointed to review documents, many of them classified, for possible privileged material, when the very nature of the privilege makes it potentially inapplicable to the case — is completely unprecedented. It is possible to sketch out some general possibilities, however, based on one of the parties’ shared positions about the qualifications of a potential Special Master: their ability to access classified information.
Both parties agree that, in their opinion, the court should appoint a Special Master who already possesses a Top Secret clearance with approval for Sensitive Compartmented Information (colloquially referred to as a TS/SCI clearance). However, this proposed requirement raises some significant logistical and perceived impartiality issues. All security clearances are controlled by the executive branch, and with very limited exceptions, the Government simply does not give a clearance to someone who is not a Government employee or contractor. Moreover, as soon as a cleared individual leaves government service, their clearance is deactivated, although they can reactivate it within 1-2 years without a new background investigation because it is considered “current.” After two years, the clearance becomes inactive and the individual must be processed through a full background investigation again.
What all this means is, for a person to have an active TS/SCI clearance, they must generally be currently employed with the executive branch, either as a government employee or as a contractor. Even if we extend the proposed requirement to people with “current” clearances, they must generally have worked for the executive branch within the last two years. As an initial matter, it would be hugely improper for a current executive branch employee to act as a Special Master, even if Trump agreed to it, which he would not. Given his distrust of the Intelligence Community, he would also be likely to object to any cleared contractors or civilian employees who worked for the Government in the Biden Administration. DOJ, for its part, would have severe impartiality concerns about a political appointee from the Trump Administration, meaning that there would likely be no mutually agreed upon potential Special Masters if both sides continued to insist on this requirement.
An alternative — and in my considered opinion, better — option is for the judge to appoint a Special Master who is a subject matter expert in executive privilege and attorney-client privilege and then direct DOJ to process that person for access to the relevant classified information. This is the process by which private attorneys gain access to classified information that is necessary to represent their clients. They are almost never given actual “security clearances,” but are instead given a grant of access called an LSA, which stands for “Limited Security Access” or “Limited Security Approval,” depending on whom you ask. A private attorney with an LSA may access only that classified information which is immediately relevant to the matter at hand, and their access disappears as soon as they no longer need it. Four such potential Special Master candidates were proposed to Judge Cannon (full disclosure, by me), and one or both of the parties may similarly propose one or more candidates without a security clearance. As a rule, the process for obtaining an LSA is significantly faster than the process for being granted a full security clearance, and it would likely only cause a brief delay in the Special Master’s ability to review classified materials. Moreover, given that only approximately 100 out of roughly 11,000 documents seized by the FBI are reported to be classified, there is no reason that the Special Master could not review the unclassified documents while waiting to receive an LSA.
In fact, there is an additional logistical wrinkle if the parties continue to insist that a security clearance be a requirement for a potential Special Master, since it would cripple DOJ’s ability to confer about potential candidates with Trump’s legal team. The Government’s legal position in other litigation is that whether or not an individual possesses a security clearance is a piece of personally identifiable information which cannot be legally released to a third party due to the Privacy Act. In other words, this means that if Trump’s lawyers provide a name to DOJ and ask for confirmation that that person has a security clearance, DOJ cannot legally provide that confirmation, and DOJ cannot legally propose any names to Trump’s lawyers without implicitly revealing that those individuals have security clearances. This will make it practically impossible for the parties to confer about potential candidates as Judge Cannon ordered, unless DOJ violates the Privacy Act to do so. Therefore, while it is entirely reasonable for the parties to insist that the Special Master be capable of obtaining a TS/SCI clearance, it is illogical for them to insist that they already have one.
One third option has been floated in my discussions of this matter with journalists — that of appointing another judge to be the Special Master. Article III judges do not require security clearances to access classified information because they belong to a co-equal branch of the Government, and so such an appointment would resolve this tension. However, this may not be the magic bullet that it first appears. As an initial matter, it is unclear if a sitting Article III judge can serve as a Special Master, and I have not discovered any instances of such an appointment. A Magistrate Judge, which is not an Article III judge but is instead a creation of statute, can be a Special Master, but because they are not Article III judges, a Magistrate Judge would still need to receive a security clearance. A retired Article III judge could definitely serve as a Special Master — and in fact one did in the Michael Cohen case — but again, because they would be retired, a security clearance would still be necessary. Therefore, unless a sitting Article III judge can serve as a Special Master — which I doubt for various prudential reasons — none of the judicial options would be any better off than anyone else, clearance-wise.
Conclusion
In the final analysis, I expect that DOJ will appeal this decision and ask that the appellate review be expedited, and I expect that the 11th Circuit will treat the matter expeditiously. Whether DOJ decides to allow a Special Master to review the seized materials during the appeal is entirely unpredictable, and so I will not attempt to blindly speculate on that question. If the Government does decide to simply play along and allow the Special Master review to happen, the most efficient and logical solution is for Judge Cannon to appoint the most qualified candidate, regardless of clearance status, whether the parties agree on that person or not. The one thing that is for certain, though, is that, as Mark Rozell and I wrote last November, “it is clear that former President Trump will continue raising the specter of invoking executive privilege,” and until the judicial system definitively says that he cannot, this argument will keep happening.
Kel McClanahan is the executive director of National Security Counselors and an adjunct professor at the George Washington University Law School, where he teaches law of secrecy. He can be found on Twitter at @NatlSecCnslrs.
[Photo by Giorgio Viera/AFP via Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
