Nicholas Kamm/AFP via Getty Images
- On Thursday the DOJ appealed the ruling for a special master to review files Trump brought to Mar-A-Lago.
- The case has moved into uncharted national security territory, experts told Insider.
- A special master's job would involve reviewing over 11,000 files, and could delay the probe.
The saga to track down and analyze the government documents that former President Donald Trump stashed at Mar-a-Lago took another twist on Thursday after the Department of Justice appealed a federal judge's decision to appoint a special master to review specific classified files.
Trump's case and the move to appoint a special master opened an unprecedented Pandora's box of concerns for national security experts.
And in the eleventh hour on Friday, the parties submitted their list of proposed candidates, which include three former judges and a former counsel to the Governor of Florida.
If a special master is indeed chosen, he or she would have to have the highest national security clearance level in the US. Ultimately, judges appoint special masters based on their expertise, so in this case, the special master would have to be deeply embedded in the national security realm, experts told Insider.
"The universe of people who have the high-level clearances, but also have expertise in areas of executive privilege and attorney-client privilege is small," Larry Pfeiffer, a national security expert who runs the Hayden Center at George Mason University and formerly ran the White House Situation room told Insider.
The move to appoint the special master has sparked more questions than answers about how the probe will play out. Here is how experts break it down.
How are special masters usually used?
A special master is typically selected as a third-party, neutral investigator in court cases where there is a need to review attorney-client privilege, in specific cases like where a law office has been raided.
Special masters are also used in cases where a settlement needs to be doled out in a class action lawsuit or to determine doctor-patient and nuptial privileges for divorce or family court proceedings.
What a special master could do in the DOJ's case
The biggest impact of requesting and appointing a special master may simply be time.
"Because there were so many classified documents in this material this was collected from Mar-a-Lago, and because of the sensitivity of the documents, whoever they choose is either going to have to already have the clearance at that level, or they're going to have to go through the process of clearing which likely won't happen or could take several months," Pfeiffer said.
As it stands, the special master would be tasked with reviewing all of the documents that were lugged to Mar-A-Lago, including the 11,000 general records as well as the 100 documents marked as classified, with the goal of determining whether any of the documents are protected by attorney-client privilege or executive privilege.
The special master would then present their determinations to the judge– and both parties on Friday signaled that they would want to review the report for potential objections before it is presented to the judge.
The DOJ and Trump's team are at odds over the classified documents in the trove, which prosecutors do not believe a special master should be able to review.
If the nominee is required to review classified documents, they would likely need top secret special compartment and intelligence clearance, TSSCI, which is the highest level of national security clearance, Pfeiffer told Insider.
Who foots the bill for the special master?
According to the Washington Post, parties typically split the cost of hiring a special master, although that decision is ultimately up to the judge.
On Friday, Trump's team called on the parties to split the costs, while prosecutors said that the brunt of the expenses should be paid by the former president as his team requested the special master.
What's behind Trump's claims of executive privilege
Trump has denied wrongdoing and said the DOJ's actions are political. His legal team requested a special master to parse out documents from the Mar-a-Lago materials that could be protected by attorney-client or executive privilege.
"Trump's team most likely will try to claim executive privilege over any documents that they believe would potentially compromise confidential White House communications," Mark Rozell, the Dean of the Schar School of Policy and Government at George Mason University told Insider. "Executive privilege protects the right of the president to receive candid advice without fear of disclosure – the problem is that private citizen Donald Trump's claim to a continuing need for secrecy is difficult to prove."
Lat week, Rozell himself was identified by the National Security Counselors as a potential fit to be Special Master after Trump's request, but he declined the nomination.
The DOJ's investigation is partially centered on whether Trump violated the Espionage Act by moving the national security material to Mar-A-Lago.
The selection process itself could impact intelligence relationships
Pfeiffer added that the quest to choose a special master and then have them review the documents could take months and generally delay the probe. During that time frame, certain intelligence relationships and sources that the US built could suffer, since the department can't be sure about the whereabouts of their materials and who they may have been shared with.
Pfeiffer said that in his experience at the White House, he never saw such a breakdown in the flow of classified documents – especially given that lives could be at stake.
"I ran the Situation Room, so I was very familiar with how paper flowed inside the White House. And it flows like it flows in a lot of big organizations where records need to be tracked and kept," Pfeiffer said. "There's a whole bunch of people who are permanent employees of the White House and something went wrong. Either they got horribly intimidated by the Trump White House, or there was rampant abuse of the system."
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