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What is a special master, and how would one be selected in Trump documents case?

Retired judge, former prosecutor, former defense attorney could be among those selected for position
Former President Donald Trump departs Trump Tower, Aug. 10, 2022, in New York, on his way to the New York attorney general's office for a deposition in civil investigation.
Posted at 2:22 PM, Sep 01, 2022
and last updated 2022-09-01 17:15:35-04

WEST PALM BEACH, Fla. — Lawyers for former President Donald Trump and the U.S. Justice Department were in federal court Thursday to discuss the appointment of a special master.

This comes after Trump's attorneys pushed for a special master to oversee the review from the DOJ of the evidence gathered at Mar-a-Lago.

But what exactly is a special master and who is chosen for the job?

RELATED: Timeline of investigation into former Trump's Mar-a-Lago documents

Generally speaking, experts argue that it would have to be someone with significant experience.

Lawyers tell WPTV it is likely up to the judge to choose some names and then the process plays out. Former FBI agent and defense attorney Stuart Kaplan said the use of a special master in a criminal case is rare.

Former FBI agent and defense attorney Stuart Kaplan outlines the function of a special master in Trump case
Former FBI agent and defense attorney Stuart Kaplan outlines the function of a special master and how it would apply in this case.

"The only time I have ever seen a special master being required or being requested is when lawyers or a law firm have been the target of the investigation," Kaplan said. "That's because going into the search, there is an inherent likelihood that the collection of evidence will be attorney-client communications."

In his experience, Kaplan said it's generally worked out between the lawyer and prosecutor to resolve the documents in question.

"The special master is only going to be able to examine those documents to make a determination as to whether or not they are privileged communications and then those documents should be kept from the eyes of the investigating agency," Kaplan said. "Keep in mind, the special master will have no authority whatsoever to involve him or herself in the legalities of the search warrant."

So, how does the special master get named?

"A federal judge will reach out to lawyers that he or she respects and who knows that they will volunteer their expertise and their experience," Kaplan said.

Kaplan said experience is a top indicator.

"I would think in this particular case, No. 1 you would want to have someone who is very seasoned, very experienced. I would think someone who has at least 20 years of lawyering experience, certainly criminal lawyering experience. Maybe a retired judge," Kaplan said. "Someone who was a former prosecutor, a former defense attorney. Someone who is a former federal or state judge."

Pages from Department of Justice court filing about classified documents at Mar-a-Lago
Pages from a Department of Justice court filing on Aug. 30, 2022, in response to a request from the legal team of former President Donald Trump for a special master to review the documents seized during the Aug. 8 search of Mar-a-Lago, are photographed early Wednesday, Aug. 31, 2022. Included in the filing was a FBI photo of documents that were seized during the search.

The petition was filed in the Southern District of Florida. But does that automatically mean the person is chosen locally?

"Generally I would expect a special master coming from Florida, from South Florida," Kaplan said.

However, there is a potential caveat.

"If there is a concern from the judge that she is concerned about some unfair influence or whether or not we need to go outside the state of Florida to protect or shield to protect that individual being a quote-unquote special master, she obviously can do that as well," Kaplan said.

And how is that person selected?

"Generally, prosecutors or defense attorneys will be given a couple of names, and we will try to work it out amongst ourselves and pair it down and pick one out of a hat and say, 'OK, that is going to be the person that we agree to,'" Kaplan said.

The question now remains if a special master is chosen, who will it be and when?

Following Thursday's hearing, Judge Aileen Cannon said she will issue an opinion "in due course."