A “Special Master” Finally Tells Newsmax How Rare Executive Privilege Cases Really Are

(FiveNation.com)- David Cohen, a special master, met with Newsmax to share his perspective on the unusualness of former president Donald Trump’s request to choose a special master and to describe what a special master does.

In an interview with “American Agenda” on Wednesday,
Cohen said a special master “is kind of a fancy old name for judge’s helper,”

Cohen, who is not involved in the Trump proceedings, said anytime a judge needs help, generally, in a complex case, they will sometimes appoint a special master.

Sometimes the judge will come to the parties and say, “You know, this is a very complicated case. There is a lot of work here. I’m only one person and would like to appoint a special master.”

The special master then acts as a judge, judging which information or documents, say during a discovery phase, are attorney-client protected and which are not.

Cohen does, however, note that Trump’s case is special. “Executive privilege appears to come up, maybe once every 50 years,” whereas “attorney-client privilege comes up, in most cases, every day,” he said.

Cohen assumes it would necessitate the appointment of a special master with a top-secret clearance. Such a person, according to Cohen, would probably be a “retired federal judge.”

The court will appoint a special master to review the documents. The special master will receive those documents in camera — meaning in private; the other side doesn’t yet have access to them — and review them, ensuring that the claims of attorney-client privilege are valid.

“That is part of what’s happening in this case. The FBI concurred with the president’s assertion that some of these documents fall under the attorney-client privilege, saying, “Yeah, you’re right, approximately four or 500 of them are privileged. And we agree. We shouldn’t be able to utilize those.”

They would choose which records are protected by the attorney-client privilege or, in Trump’s case, perhaps an executive privilege for the special master. They would then draft a “report and recommendation” after that.

Cohen says, “I sign it” in this situation. The parties have the opportunity to object. They can file an objection and ask the court to review it. It’s an appeal to the court. It’s his document that he sends to the judge.