Do Special Masters Really Trump Taint Teams? Here’s A Better Option
September 9, 2022 | The Insider: White Collar Defense and Securities Enforcement
On Monday, a federal judge took the unusual step of granting former President Donald J. Trump’s request for a special master to review more than 11,000 documents and 1,800 other items seized from his Mar-a-Lago residence. United States District Judge for the Southern District of Florida Aileen M. Cannon agreed to appoint a special master – a third-party independent arbiter – to determine which, if any, of the documents are privileged. Unsurprisingly, on Thursday, the Department of Justice filed a notice of appeal to challenge the order and seek a stay. Although many legal scholars and practitioners have criticized the order in terms of its specific treatment of Trump and its analysis (or lack thereof) of executive privilege, a larger, underlying problem looms – which Judge Cannon properly noted: the government’s reflexive reliance on taint teams. A better option was available and should become routine in similar circumstances: that is to have appropriate counsel for the search subject segregate potentially privileged material from the documents seized.