Kenneth R. Feinberg knows a little something about being a “special master,” having served in that neutral role in high-profile compensation cases involving the Sept. 11 terrorist attacks, the mortgage crisis and the 737 Max disasters.
(Bloomberg) — Kenneth R. Feinberg knows a little something about being a “special master,” having served in that neutral role in high-profile compensation cases involving the Sept. 11 terrorist attacks, the mortgage crisis and the 737 Max disasters.
And he says it’s going to be difficult to find someone able — and amenable — to review records seized by the FBI from Donald Trump’s home, as a federal judge ordered last week.
“It is not going to be so easy — finding someone qualified, willing to take the heat, and also not adversely concerned about Justice Department opposition,” said Feinberg, who was appointed special master for the September 11th Victim Compensation Fund, Boeing Co.’s crash victims, and capping executive compensation for the Troubled Asset Relief Program during the 2008 mortgage meltdown.
US District Judge Aileen Cannon in Florida has asked lawyers for Trump and the Justice Department to submit their special-master candidates by Friday. That person will review documents seized from his Mar-a-Lago home as part of a probe into his handling of sensitive government records.
If the Justice Department and Trump can’t agree on a mutually acceptable candidate — and given the vitriol Trump has unleashed on the federal agency, such an agreement is unlikely. In that case, Cannon will pick someone.
But several factors make this case — and the selection of this neutral third party — unusual.
One is that many of the documents bear the nation’s highest classification markings. Another is that the judge ruled the seized materials could be reviewed for both attorney-client privilege and executive privilege, a highly unusual addition. And then there’s Trump — who rarely holds back from criticizing anyone who doesn’t agree with him — whether they are members of Congress, federal judges, or the current president.
Whoever is picked will need to bring established credibility, an above-top secret clearance, and a thick-skinned indifference to those barbs from Trump and no fear of angering the Justice Department either.
The Justice Department hasn’t announced if it’ll appeal Cannon’s ruling. If the judge’s orders stands, the pool of potential choices would likely be limited just by the subject matter of the work. DOJ has said that some of the materials are labeled with the highest classification of TS/SCI — Top Secret/ Sensitive Compartmented Information.
About 1.25 million people have top secret security clearances, according to the Office of Director of National Intelligence.
But “having SCI clearance is a much smaller group of people,” says Philip Allen Lacovara, who served as counsel to the Watergate special prosecutor, a deputy US solicitor general and a president of the District of Columbia Bar Association.
The pick does not have to be a former judge or justice, or even a lawyer. That’s because the role of master is not to make legal rulings but instead to apply factual standards and determinations of whether things fit into one category or others, and then make a recommendation to the judge.
Those tasks will require, above all, a technical background in national security and security clearances.
Lacovara suggests there are retired or former judges who served on the Foreign Intelligence Surveillance Court, which reviews applications from government agencies for electronic surveillance, physical search, and other forms of investigative actions. They would have the necessary clearance, even if it had to be renewed.
Former magistrate judges also would be strong candidates since they’ve gone through the security clearance process and wouldn’t bring political baggage since they’re appointed by the court, not nominated by a president, said Ted Bandstra, a former chief magistrate judge for the Southern District of Florida.
Speaking by phone on the drive back from the golf course — where the subject of who Cannon might appoint was of interest to the other former judges he played with — Bandstra said no one had reached out to him about the possibility of taking on the role. He wouldn’t turn it down, he said, but the public scrutiny and criticism would make it a tough post.
“On the one hand it’s fascinating and an important thing to do,” he said. Still, he added, “it wouldn’t be something I’d volunteer for.”
Trump has repeatedly attacked the investigation of his retention of government records as politically motivated and said he’s done nothing wrong.
And while he sought the appointment of a special master, there’s a good chance Trump could turn on the judge if she doesn’t choose his preferred pick or criticize the process later if it doesn’t shake out in his favor.
Such antagonistic reversals are well-established with Trump’s own picks for Cabinet officers, administration jobs, or others, who later became his targets — from Attorneys General Jeff Sessions and William Barr to FBI Director Christopher Wray, to others.
“Better brace yourself,” Feinberg warns of whoever might accept the role. He said some potential picks may not want to face attacks from Trump and his followers that, right or wrong, might forever be associated with a previously untarnished reputation.
And it’s not only Trump who could make potential picks gun-shy. Feinberg suggests some candidates might not want to take on a role of potentially “bucking the Department of Justice,” which had argued against any need for such a review, to begin with.
(Updates with Bandstra starting in the 15th paragraph.)
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