What does a special master do? One explains A judge has granted Donald Trump's request for an independent review of materials seized from Mar-a-Lago. A special master says that the primary qualification is remaining neutral, which isn't easy.


What a special master does, as told by a special master

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There's a whole lot of talk about special masters right now. That's because former President Donald Trump wants one appointed to review the documents that the FBI seized from his Florida estate. A federal judge yesterday said she remained open to the idea; the Department of Justice is not. David R. Cohen is a special master. He's served in federal cases, including in opioid litigation. And he joins us this morning. Thank you so much for being here.

DAVID R COHEN: Hi. Good morning.

MARTIN: In basic terms, what does a special master do?

COHEN: Well, a special master really is kind of a fancy name for judge's helper. And so when judges get complex cases, they will sometimes appoint a special master. Obviously, that's not going to happen when it's a simple car accident. But in a case where the subject matter is complicated - for example, an antitrust case or a patent case - or the case itself is just overwhelmingly large - like BP oil spill case or the opioid litigation, national opioid litigation - or even just a case where the parties can't really even say hello to each other without getting into a fight and it just needs a lot of judicial supervision, what a federal judge will sometimes do is appoint a special master just to help the judge oversee the case because there's just a lot to do on a case. And judges have limited judicial resources, limited time.

MARTIN: No doubt these are attorneys. What are the other qualifications needed?

COHEN: Well, it's not always an attorney. For example, in a patent case, what the judge might need most is somebody who is conversant in the technology at issue. But you're certainly correct that it's usually an attorney. And I guess the primary qualification is just somebody who can remain neutral, which isn't easy. It's kind of hard to refresh your neutrality every day. You can't come in and be a judge or a special master with an agenda or really kind of wanting one side to win. You need to look at all the facts and the evidence and what the parties are arguing and apply the law to the facts and come out to what the right result is regardless of who is appearing before you.

MARTIN: Are you trying to draw a conclusion?

COHEN: You know, it depends, Rachel. If I'm being asked by the judge to provide a report and recommendation on a motion, then, yes, I'm going to say, Judge, this is how I think you should rule. And I'll draft an order or a proposed order or I'll submit my opinion over my signature, which the parties can then accept or appeal to the judge. And in other cases, it's sometimes just being present so that while the parties are arguing, you can referee it. And in this case, in front of Judge Cannon, it looks like the judge is going to be appointing - if that does happen - appointing somebody who is going to make calls, yes or no, this is privileged, this isn't, submit a report to the parties. The parties would then have an opportunity to object, which is to say to appeal to the judge. And she would then rule de novo, which means kind of start at the beginning. But everybody knows that, for the most part, if the special master knows what they're doing, the judge is going to accept the recommendation.

MARTIN: Could appointing a special master in this case slow down the Justice Department's investigation?

COHEN: It's possible. You know, this is such an unusual case. In most cases where I've been appointed, I'm being asked to oversee discovery. I'm being asked to rule on attorney-client privilege issues. There aren't really any cases where you have ex-president of the United States having materials taken out of his house and citing not only attorney-client privilege, which is relatively easy - there's all kinds of case law about that - but executive privilege, which has not been the subject of a lot of case law. And so it's very likely that if Judge Cannon appoints a special master, that that special master is going to have to do a lot of legal research, come to a place of understanding of how to apply the law and look at some pretty unusual facts. So that does have the chance to slow things down. But on the other hand, the judge could provide for kind of a parallel processing where the review continues by the Justice Department while the special master is reviewing the documents as well.

MARTIN: We appreciate your context on this. David R. Cohen - he is an experienced special master himself. Thank you so much.

COHEN: Thank you. Good to talk.

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