What is a special master?


As a federal judge in Florida granted former president Donald Trump’s request for a special master on Monday, Americans could be forgiven for asking a simple question:

The judicial system is famous for its thicket of impenetrable legalese, with terms like “nolo contendere” and “writ of certiorari” befuddling laypeople trying to keep up with courtroom drama. Now we have “special master,” an obscure honorific that has become the focus of unusual attention with U.S. District Judge Aileen M. Cannon’s decision to appoint one to review sensitive documents the FBI seized from Trump’s Mar-a-Lago estate in August.

What, exactly, is so special about these special masters? Is that term even appropriate? And what are they masters of, anyway?

“It’s a fancy term for judge’s helper,” said David R. Cohen, a Cleveland-based lawyer who, at the request of various federal judges, has earned a comfortable living over the past two decades as a special master.

As dockets have grown over the years, Cohen said, judges have more frequently turned to these independent arbiters for help overseeing complex civil cases. The duties of a special master include helping to mediate disputes over document requests, drafting court orders and ensuring that those orders are followed.

“Special master work is the epitome of digging into the minutia,” said David Tenner, who is president of an association of special masters. “It’s the kind of minutia that judges typically don’t have time to do.”

Tenner says the work of a special master, much of which he can do at his Denver office, is less taxing than what he did as a trial attorney. Rather than interviewing witnesses and poring over documents as part of the process of building a case, “you’re just listening to what’s being told to you and making the call,” he says. “While other people might find it boring, I think it’s great.”

In one case, he got to dig into the minutiae of ballot machines. In another, he learned a ton about concrete. In another, it was cannabis. “It’s fun, it’s cool,” Tenner says of the work.

The special master in the Trump case faces an imposing task. Whomever the judge appoints for the role “should be someone with security clearance,” says Cohen, the Cleveland-based lawyer. “You want someone with a lot of gravitas. A retired judge, someone who used to be a federal judge.” In her ruling Monday, Cannon, who was nominated by Trump in 2020, ordered the former president’s lawyers and the Justice Department to submit names of possible appointees this week.

Trump’s legal team had contended that a special master is necessary to assess whether certain documents seized by the FBI should be returned to Trump because of attorney-client privilege and executive privilege. Justice Department attorneys argued that a special master would delay the department’s investigation and is unnecessary because its own “filter team” was assessing the documents.

In the end, Cannon ruled that a special master is needed “to ensure at least the appearance of fairness and integrity under the extraordinary circumstances.”

Whoever takes on the role is sure to face a level of notoriety that special masters are not accustomed to.

“I’d be afraid of what the consequences of ruling against the president would be,” says Lawrence Lessig, a Harvard Law School professor, referring to Trump. “I’d be wondering what the consequences of my decision would be — not just for the case — but also the people watching the case. The MAGA people.”

Lessig knows from experience that taking on the role of special master can be sticky business. He served as a special master in the Microsoft antitrust case during the late 1990s at the invitation of U.S. District Judge Thomas Penfield Jackson. “It was wonderful because it was an incredibly complicated case,” Lessig, a technology expert, says. But he also says he received “hateful” phone messages and “threatening” letters from the company’s supporters. A federal appeals court eventually removed him from the case after Microsoft opposed his appointment, arguing that he was biased against the company.

As a gesture of goodwill, Lessig said, Microsoft executives eventually invited him to a dinner at its Redmond, Wash., headquarters. “They were trying to be apologetic and say it was all business,” he says, adding that there were no hard feelings. “I took the money I earned and liquidated it into a new Audi.”

So where did all this special master business begin?

In England hundreds of years ago, says Amalia Kessler, a Stanford University Law School professor. By the 15th century, she says, British judges were assigning fact-finding work to clerks who were called masters. In the United States, “We called them ‘special’ because they’re not a group of masters associated with a particular court but appointed on a special basis, case by case,” says Kessler.

The role of special master is known mainly to judges and attorneys who deal in civil litigation. In one particularly well-known case, Congress appointed a special master, Kenneth R. Feinberg, to oversee the claims process for the Sept. 11 Victims Compensation Fund, a role that involved deciding the amount of money each victim’s family would receive. Courts also have assigned special masters to oversee troubled prisons and school districts, and to redraw congressional lines.

Kessler is concerned about the latitude judges are allowed in choosing special masters in their cases. “This is the Wild West of the law. There are no constraints,” she said. “It’s nuts. Why wouldn’t you have some requirements for making sure they’re competent? It seems like a recipe for a huge amount of variability.”

Merril Hirsh, the executive director of an association of special masters, says there have been discussions within the profession about establishing ways to review qualifications and establish rosters within states of special masters who are qualified for the role.

There have also been discussions about whether the title “master” is appropriate, says Hirsh, given its association with slavery. Similar discussions have occurred in the real estate industry, where some brokers now refer to “master” bedrooms as “primary” bedrooms. In June, Hirsh’s group decided to change its name from the Academy of Court-Appointed Masters to the Academy of Court-Appointed Neutrals.

“No one really likes to have a master except a Saint Bernard,” Hirsh says. “It’s just bad branding. We want to promote this profession, and we don’t want to defend a name that’s a poor description of what we do and some people find inappropriate or insensitive.”

Cohen, a former president of the academy, said he voted against changing the name. The title of special master, he said, “is a nice honorific, it carries just enough prestige. You need to be in a position of authority. It does what it’s supposed to do.”

“Now what am I?” he said of being referred to as a “neutral.” “Sounds like I’ve been neutered.”

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