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