On Recent Special Master Timelines & Candidates
I’m not going to pretend I know anything about investigation, grand jury and/or indictment timelines. For now. Later I might pretend to know something about that. (It will, to be clear, still be pretend.)
But I did look up some recent ‘Special Master’ precedents, including some mentioned in Judge Cannon’s ruling today. Per that ruling, the next hearing on the issue is September 9, where both the U.S. Department of Justice and Trump’s lawyers, are, together, supposed to come up with a list of potential candidates.
One name that came up a few times in an internet search was Barbara Jones. Judge Jones is a retired Federal Judge who has been asked to be a Special Master in at least three recent high-profile cases (and at least two closely relate to Trump.)
She was appointed Special Master in late April, 2018 to handle the case of Michael Cohen (Trump’s former lawyer). That work concluded on August 9, 2018. So, a little over three months, start to finish.
She was subsequently appointed special master in a case involving Rudy Giuliani. (who needs no introduction?) This appointment started on June 4, 2021. However, it was still going at least six months later, January 21, 2022. Per emptywheel.net, it appears to still be ongoing? It’s not clear to me if this is still a work in progress, or if the fight is now over who pays for what and when.
Judge Jones most recent assignment as Special master is in the Project Veritas case – the organization of James O’Keefe (the guy who used to dress up like a pimp) who allegedly stole a diary from a Biden family member. This assignment was on December 8, 2021, and again, as far as I can tell, is still ongoing.
The U.S. Department of Justice, in their briefings to Judge Cannon, indicated that the review process their own team would use to isolate privileged, and other such documents, would be about three weeks. From above, it seems to be that a special master shouldn’t take appreciably longer (maybe, one week = one month), but the wildly varying timeframes above clearly indicate that there’s a lot of uncertainty.
If anything, unless Judge Jones gets the call again, I would think there’s going to be a fight over the appointment, and that won’t be resolved this week.
Hey Jaybird, you said to write more. This is that! 😉Report
AWESOME!Report
Hooray! Thank you!Report
The big unknown in this case is what the rules regarding all the classified documents will be. Will the special master have to read the documents? Will the master require all of the clearances normally necessary to do that? What about the master’s staff? Will the master be subject to the normal rules that taking notes about the documents is not allowed? What will the working conditions be for, say, Top Secret/SCI documents?
As I understand the judge’s ruling, the FBI/DOJ cannot use any of the seized documents, classified or not, for investigative purposes. I don’t believe she said anything about not bringing the documents back under the normal security routines. I recall reading an opinion somewhere that unless the SCOTUS chooses to overrule parts of the Presidential Records Act and the classified records procedures, there’s not a chance that any of the classified documents will ever be returned to Trump.Report
The ruling did say under “Temporary Injunctive relief) that that the Office of the Director of National Intelligence (ODNI) could continue what they were doing:
earlier in the ruling that assessment was defined as:
My own limited experience with this sort of thing tells me they *are* going to continue to assess internally ‘ok what’s the bad things that may occur if such and such knows about this or that super secret squirrel stuff’. And that’s what Judge Cannon has specifically signed off on.
But they are *not*, I’m pretty sure, doing any kind of classification review – no assessment as to whether 1) docs marked classified have material that should still be classified 2) docs not marked classified actually contain classified material 3) stuff with classification markings are at the right level and compartment for what the document says. But that’s not because the Judge says they can’t, it’s because that sort of process is a completely different one than the one initiated by this sort of thing.Report
What’s the size of the poll of potentials?
1. There are two people who qualify and the other one had his thyroid removed a week ago
2. There are literally 4 dozen people who qualify and this person keeps getting pickedReport
I tried to use Courtlistener dot com and Courthousenews dot com to get a better handle of the larger ecosystem of ‘special masters. There do seem to be several active at any given time in the federal court system, but without a ‘real’ law search engine account (like PACER?) it’s hard for me as layman to get a good idea of usual practices.Report
There are always at least a couple because there are always at least a couple of interstate water compact cases before the Supreme Court, and the first thing the Court does with one of those is to assign a special master. (Then ignore the case for some years.) Often multiple special masters per case, sequentially. I believe that Texas v. New Mexico and Colorado is on its third or fourth special master.Report
The big thing about Judge Cannon deciding to grant the request for the special master is that it seems she went outside of the pleadings and created a better argument for Trump than his own lawyers. She is also a last-minute Trump appointee and only 39, so another of Leonard Leo’s “gifts” who will be around for 3 or 4 decades.Report
I made a snarky comment on twitter on how my own state, Virginia’s, two senators – each of whom are Democrats, and one, a former Vice Presidential candidate – both voted for her confirmation. The weird thing about the roll call to me was how many “not-voting” Senators there were – 23, and a roughly equal number of Dems & Gops.
Everything about this judge’s elevation to her current position has been half-assed.Report
As always, if you want the deepest analysis of these Trumpian legal shenanigans, you should follow Emptywheel:
https://www.emptywheel.net/2022/09/05/aileen-cannon-calls-an-investigation-into-whats-literally-a-stolen-diary-politicized/Report
Clearly Federalist Judges are cut from some significantly judicial activist cloth.Report
Recent back and forth on who to appoint and what they should do still centers around Trump’s unfounded assertions under a Unitary Executive theory that if he said something was declassified it was, and NARA can’t keep it form him anyway.
I’m sure that’s not what Bill Barr has advocated for all these years of course.Report
I want to see a sworn declaration by Obama that he secretly re-classified them, and one from Jimmy Carter that he put all of the documents on double secret probation.Report
Oh it gets better:
https://www.cnn.com/2022/09/12/politics/special-master-nominee-responses/index.htmlReport