And that’s not just because he lacks the qualifications to work with those documents, former special master Ken Feinberg told CBS News. But because of the political whiplash likely facing anyone who takes the job, including the likelihood of personal threats and the intense media scrutiny that comes along with the acceptance of such a high-profile position.
“This is a political appointment,” Feinberg said. “Now I agree there are very substantive national security concerns. But this is already, you know, if you’re asked to do this, brace yourself one side or the other, they’re going to be looking at how you behaved in grammar school. And never mind it was 70 years ago, or 60 years ago. I mean, this is political warfare of the type that we’ve been seeing over the last decade. And it’s very, very problematic.”
The fight over a special master is part of a broader inquiry by the U.S. Department of Justice (DOJ) into how Trump came into possession of a number of classified documents seized from his home at Mar-a-Lago on August 8. While Trump has argued that the information was declassified, the federal government has argued that he illegally took the documents from his time in the White House and improperly stored them while fighting their return when the National Archives learned they were missing.
There has not been a special master appointed to oversee the case against Trump, which numerous legal experts have described as unprecedented in U.S. legal history. However, there are numerous nominees.
The DOJ has recommended two former federal judges—George W. Bush appointee Thomas Griffith and Bill Clinton appointee Barbara Jones—while Trump’s attorneys have proposed Federalist Society contributor Paul Huck Jr. and former Ronald Reagan judicial nominee Raymond Dearie, who notably approved federal investigators’ request to investigate Trump campaign foreign policy adviser Carter Page as part of the inquiry into Russia interference in the 2016 election.
However, Feinberg, who oversaw cases including the delivery of the September 11th Victims Compensation Fund during former President George W. Bush’s administration as well as CEO compensation for companies that received government bailouts during the 2008 financial crisis, told CBS that the person ultimately tasked with the job would need to meet a weighty list of criteria to even be remotely qualified to do the job, including experience with classified documents.
But they would also need to be prepared for the intense public spotlight the case would bring.
The special master will be tasked with ensuring the fairness and integrity of the case, both in limiting leaks and ensuring proper access for the attorneys on both sides to the confidential materials.
But they also operate as an impartial third party to the judge as well as the attorneys on both sides, a role that could potentially draw its own scrutiny. Last week, the judge overseeing the case, U.S. District Judge Aileen Cannon, ruled that Trump’s attorneys would potentially be allowed to review some of the documents, a decision that would ultimately lie with the special master.
That, Feinberg said, could put the judicial branch in a compromising position. In submitting its own list of nominees, Trump’s attorneys suggested that the Justice Department can’t be trusted to do its own review of potentially privileged materials, which they said should be isolated from the criminal probe into what classified materials Trump did—or didn’t—take. Trump has already targeted the DOJ’s attorneys for seeking to exclude a special master from the process, challenging the department’s credibility in the process.
There are other political considerations. The DOJ’s nominees have played roles opposite Trump—Griffith, in co-authoring a report debunking Trump’s claims about systemic fraud in the 2020 presidential election—and Jones, who served as a special master in inquiries involving Trump associates Rudy Giuliani and Michael Cohen.
“The idea that the judiciary will intervene in what is essentially a highly skilled executive branch function of classifying documents—I don’t think it is a good idea for the judiciary to get involved,” Feinberg told CBS.
“And the idea that this is a judicial function, I’m very dubious about that. The department and the national security agencies, the CIA, they have information and valuable insight into all of this. And I’m not sure a federal judge, district court or appellate court really has that sophistication and that experience to be able to make those conclusions.”