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Former judge speaks to the significance of a special master for Mar-a-Lago documents

AILSA CHANG, HOST:

Former President Trump got his way this time. U.S. District Judge Aileen Cannon has granted his request for a special master. Now, that person, whomever it turns out to be, will review the documents seized by the FBI from Mar-a-Lago last month. The decision means that federal prosecutors, at least for the time being, will not be able to use those documents in their ongoing investigation into obstruction and mishandling of government secrets. Many of these documents have been classified as top secret. Here to walk us through the significance of this ruling on the special master is retired federal Judge Vaughn Walker - good to speak with you, judge.

VAUGHN WALKER: Hello.

CHANG: Hello. So this decision - it's received a lot of criticism from former federal prosecutors and from law enforcement. And I'm wondering what you think. Can you just talk about why it has been so controversial in some quarters?

WALKER: I believe the criticism stems from the fact that it's very unusual to appoint a special master to review privileged claims. Ordinarily, that's done in-house by the Department of Justice. Another basis of the criticism, I believe, is that a review of privileged claims at this point is unusual. Usually it comes much later, when there's a Fourth Amendment challenge in the course of a criminal prosecution. And her decision is premised, at least in part, on the identity of the individual whose premises were searched - that is, former President Trump. And that seems like it's giving him some process that an ordinary litigant would not typically have.

CHANG: OK. Well, let me ask you about that piece because Judge Cannon was appointed by former President Trump. This is a fact that many people who are criticizing the ruling are citing. Is that a fair thing to point out - that she was a Trump appointee?

WALKER: No, I don't think that's a fair criticism. She comes to the bench with very good credentials. She has solid academic credentials. She was with an outstanding law firm. She has prosecutorial experience. Lots of judges rule in a way that the presidents or senators who were instrumental in the nomination or appointment process don't like. And judges do that all the time. So I don't think that's a fair basis of criticism.

CHANG: As an active judge, you reviewed classified government documents in some of your prior cases. The Justice Department has said that some of this information in this ongoing Mar-a-Lago seizure was at such a high level of classification, some of the agents working on the case had to be granted special clearance. Does that make it more difficult to find a special master who can access that level of classified information?

WALKER: The answer to that is yes, and it would almost certainly have to be someone who has, at least in the past, cleared that review process. I had to do that in the national telecommunications security cases. It's a cumbersome process, and finding someone who has been cleared to review those documents is going to take some time.

CHANG: Well, as this whole process moves forward, what kinds of things will you personally keep an eye on to get a sense of whether the involvement of a special master is working?

WALKER: Well, I think there are a couple of things to bear in mind, and that is, for the identity of the special master, it needs to be someone who essentially has no ties to former President Trump or to any ongoing relationship with the Department of Justice. Secondly, as you know, the Department of Justice tries to avoid bringing indictments and prosecutorial matters at any time that's close to an election time for fear that it may affect the outcome of an election. And we're here about 60 days or so from the midterm elections. And so I think a very sensible time limit is to inform the special master that the special master's report must be completed before those midterm elections.

CHANG: That is retired federal Judge Vaughn Walker speaking with us about another federal judge's decision to grant a special master to review the documents seized from the home of former President Trump in Florida. Thank you very much, judge.

WALKER: Well, thank you. Transcript provided by NPR, Copyright NPR.

Ailsa Chang is an award-winning journalist who hosts All Things Considered along with Ari Shapiro, Audie Cornish, and Mary Louise Kelly. She landed in public radio after practicing law for a few years.
Justine Kenin
Justine Kenin is an editor on All Things Considered. She joined NPR in 1999 as an intern. Nothing makes her happier than getting a book in the right reader's hands – most especially her own.