Updated September 12, 2022 at 7:44 PM ET
The Justice Department and lawyers representing former president Donald Trump continue to tussle over his request for a special master to review the materials seized from Mar-a-Lago.
It's not just that the two sides don't see eye to eye about whether a special master should be part of the proceedings in the first place — they disagree on fundamental details including who should fill the role, how long the process should take and who should cover the costs, as a joint court filing submitted on Friday reveals.
Responding on Monday to the DOJ's latest attempt to block the move, Trump's lawyers reaffirmed their call for a special master to review the recovered documents, which they said may not actually be classified.
They described the criminal investigation as a document storage dispute that's gotten out of control, and said Trump has an "unfettered right" to access those presidential records. Federal prosecutors say the special master proceedings are harming national security by preventing them from using classified material in their criminal probe.
Each side submitted two picks to be special master for the case on Friday, after U.S. District Judge Aileen Cannon approved Trump's request.
The Justice Department has proposed two former federal judges for the job: Barbara Jones (appointed by Bill Clinton) and Thomas Griffith (a George W. Bush appointee). Trump's picks are senior federal Judge Raymond J. Dearie (appointed by Ronald Reagan) and Paul Huck, Jr. (a conservative lawyer who has served in Florida state government).
Both parties were instructed to respond to each other's candidates today. In a filing Monday afternoon, Trump's lawyers objected to the DOJ's candidates but said that they want to state those objections in front of the judge.
Hours later, the Justice Department submitted a filing rejecting Huck, but saying that Dearie would be acceptable. They noted that he is not fully retired as the Trump team had asserted, but holds a semi-retired senior status and asked the court to consider "whether the special master role would constitute outside employment and what rules and/or restrictions, if any, would apply to his serving in this capacity."
The government lawyers also said they had reached out to Dearie on Monday who confirmed he would be available to complete the work "expeditiously."
Essentially, the two camps were telling Cannon whether they have agreed on a candidate or whether she is going to have to make that decision, as former U.S. Attorney Chuck Rosenberg tells Morning Edition's A Martínez.
"The whole idea here — and I get what Judge Cannon was trying to do, although I don't think she did a particularly good job of it — was to give this process the imprimatur of neutrality, to find a third party, an outsider, somebody with no stake in the outcome to make a review of the documents that were seized and make certain determinations," Rosenberg adds. "I guess any of these people would be fine, but that sort of begets another question ... which is whether you need a special master at all to begin with, and I'm not sure you do."
When choosing a candidate, experience and clearance are key
Rosenberg believes there are two main criteria that Cannon will take into consideration when deciding whom to appoint as special master.
"The nominees for the job ... all strike me as okay, but experience and the ability to hold and maintain a security clearance would be foremost among their qualifications," he says.
Security clearance is important because there might be classified documents at issue. Rosenberg stresses the word "might" because the Justice Department doesn't believe that the special master should be overseeing that particular part of the case. And he says former federal judges all have experience handling these sorts of issues, which is important too.
The timeline is another point of contention
The Justice Department would like the review process to wrap by mid-October, while Trump's legal team wants it to run for 90 days (which means it would finish after the midterm elections).
If the Justice Department had its way there wouldn't be a special master at all, Rosenberg points out. He says the department wants to expedite the process so that it can resume its investigation into the obstruction and mishandling of government secrets, because "investigations don't get better with age."
"That's a way of thinking about the Trump team's position," he adds. "Typically for subjects of investigations, for defendants, delay helps because, again, cases don't get better with age."
All roads lead back to the original investigation
Cannon ruled that the Justice Department can't use the seized documents in its criminal investigation until the special master has completed their work. At the same time, she said the intelligence community can continue its review of potential national security risks.
Can those threads be untangled? The government says no. And Rosenberg, who calls this issue "probably the most important aspect" of the case, agrees.
"From my perspective ... they're one in the same," he says. "How do you do a damage assessment unless the FBI is permitted to continue its criminal investigation [into] if documents were passed, for instance? That's something the intelligence community would need to know."
Rosenberg concludes: "It seems like an artificial distinction and the most problematic aspect of Judge Cannon's ruling."
This interview was produced by Kaity Kline and edited by Nell Clark.
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