Do Special Masters Really Trump Taint Teams? Here’s A Better Option

On Monday, a federal judge took the unusual step of granting former President Donald J. Trump’s request for a special master to review more than 11,000 documents and 1,800 other items seized from his Mar-a-Lago residence. United States District Judge for the Southern District of Florida Aileen M. Cannon agreed to appoint a special master – a third-party independent arbiter – to determine which, if any, of the documents are privileged. Unsurprisingly, on Thursday, the Department of Justice filed a notice of appeal to challenge the order and seek a stay. Although many legal scholars and practitioners have criticized the order in terms of its specific treatment of Trump and its analysis (or lack thereof) of executive privilege, a larger, underlying problem looms – which Judge Cannon properly noted: the government’s reflexive reliance on taint teams. A better option was available and should become routine in similar circumstances: that is to have appropriate counsel for the search subject segregate potentially privileged material from the documents seized.

When the government has concerns about whether someone will destroy, conceal, or otherwise tamper with documents – as the government may legitimately have had here – nothing is improper with properly executing a court-authorized search to secure the materials. Once the documents are secured, however, as they are in Trump’s case, no good reason exists to keep the subject’s lawyers (here with appropriate security clearance) from reviewing them for privileged information, especially since leaving the privilege review to the government risks creating problems. Indeed, Judge Cannon noted at least two confirmed incidences of members of the government’s investigative team improperly being exposed to privileged material. Further, in footnote 13 of the opinion, she expressed concern that the government did not clearly indicate that “any steps were taken after these instances of exposure to wall off” the “tainted” investigative team members.

Special masters, however, are not an ideal solution to the problem posed by government taint teams. Executive privilege review raises potential challenges (including obtaining security clearances for special masters, witness lawyers, and court personnel) that are beyond the scope of this article, but at least as it relates to protecting the attorney-client privilege, the better and more efficient response from Judge Cannon would have been to borrow from the process typically used in addressing subpoenas: allow the subject’s attorneys simply to review the record for privileged materials and create a privilege log, which could be provided to the government. Then, any objections could be litigated before the judge.

How Judge Cannon’s Rightful Distrust of “Taint Teams” Led Her To The Wrong Answer

As Judge Cannon noted, the government had, thus far, relied on the Privilege Review Team to screen the nearly 13,000 items for potentially privileged materials. The Privilege Review Team is essentially what is more commonly known as a “taint team,” an internal government team that is supposed to screen out materials covered by the attorney-client privilege from the government’s investigative team. In the past, I have criticized the use of taint teams as a “‘fox guarding the chicken coop’ procedure” that is “inherently ill designed to protect the privilege.”

Although the government has tried to make courts more comfortable with the use of taint teams, a “basic structural flaw in the taint team procedure is that it does not prevent the government from accessing privileged information; the procedure simply dictates which government agent sees it first.” The holder of the privilege is in the best position to determine what materials are, in fact, privileged, and taint teams try to circumvent this cornerstone principle of criminal justice. Unsurprisingly, taint teams have led to situations where privileged information inadvertently was provided to the government’s prosecution team. They even resulted in an agency mishandling its own potentially privileged information, as in a recent situation involving the SEC. An additional problem is that defendants often encounter difficulty obtaining relief for such government misconduct.

Thus, Judge Cannon rightly expressed concerns about the “perception of fair process” when “as here, the Privilege Review Team and the Investigation Team contain members from the same section within the same DOJ division, even if separated for direct-reporting purposes on this specific matter.” I share Judge Cannon’s concern with how the government’s use of its own privilege-screening teams affects the “perception of fair process.” The use of a special master, however, is not the solution.

The Special Master Problems That Go Beyond Trump

Perhaps a sign that we have grown too accustomed to problematic taint teams, few scholars or practitioners have raised the possibility of letting Trump’s attorneys, rather than a special master or some internal government team, review the documents. The current debate seems to lose sight of the fact that a key purpose of executing a search and seizure is to secure documents for an investigation – not to completely block the search’s subject from accessing the documents and certainly not to violate the subject’s attorney-client privilege.

Once the documents are secured properly, the best option can be to let counsel for the privilege holder conduct a privilege review – just as counsel would (and in Trump’s situation, previously had done) when responding to a document subpoena. This process would not entail lengthy or unrestrained access to the documents: the court can limit counsel’s review time to a circumscribed period, and if prosecutors are concerned about counsel’s proper handling of documents, prosecutors can provide copies or require that the review be conducted in government offices. Additionally, the government has the opportunity to dispute any privilege designations before a judge.

The Advantages Of Attorney Review – Even In Complicated Cases

Although I will refrain from addressing the criticism that Judge Cannon misinterpreted the scope of the executive privilege, I recognize the privilege review here may be additionally complicated. Taking the privilege review out of the hands of the privilege holder’s counsel, however, does not make things any easier. For one, it may well be difficult even finding a special master acceptable to both parties who has both the security clearance and the specialized knowledge of executive privilege. Considering the relatively unchartered legal territory here, any call on executive privilege that a special master makes likely will face objections by the government, Trump’s counsel, or both. Rather than waiting on the special master to take a first pass at novel legal issues, it could be more efficient for Trump’s lawyers to conduct the initial executive privilege review to determine what is worth litigating over with the government.

Having Trump’s counsel conduct the initial privilege review offers a particularly pertinent advantage: such a process is more likely to avoid unduly long delays that can hamper, if not altogether stymie, an investigation. Some fear that Trump’s request for a special master was motivated, at least in part, by a desire to “slow the pace of litigation to run out the clock.” A special master’s review of thousands of documents – which in and of itself could lead to time-consuming legal battles – also runs the risk of delaying the criminal investigation of Trump. If Judge Cannon had, instead, ordered the government to allow Trump’s attorneys to review the documents (which seemingly, they already had done at Mar-a-Lago when responding to an earlier subpoena) for a short, specified period, delay concerns could have been significantly reduced.

Ironically, if Judge Cannon had instituted the privilege procedures that courts typically rely on with subpoenas (in which counsel for the privilege holder conducts the privilege review), she could have better served her goal of ensuring the “perception of fair process.”

To read more from Robert Anello, please visit www.maglaw.com.

Emily Shire, an associate at the firm, assisted in the preparation of this blog.