What exactly is so special about these special masters? Is this term even appropriate? And what are they masters of, anyway?
“It’s a fancy term for judge’s aide,” said David R. Cohen, a Cleveland-based attorney who, at the behest of various federal judges, has comfortably earned his living over the past two decades as a master special.
As cases have grown over the years, Cohen said, judges have more frequently turned to these independent arbitrators for help overseeing complex civil cases. The duties of a special master include helping to arbitrate disputes over requests for documents, writing court orders, and ensuring that those orders are followed.
“Special masterwork is the epitome of digging into the meticulousness,” said David Tenner, who is president of an association of special masters. “It’s the kind of thoroughness that judges don’t usually have time for.”
Tenner says the job of a special master, much of which he can do at his Denver office, is less taxing than what he did as general counsel. Rather than interviewing witnesses and looking at documents in the course of process of building a case, “you just listen to what you’re told and make the call,” he says. “While other people might find it boring, I think it’s great.”
In one case, he was able to dig into the details of the voting machines. In another, he learned a ton about concrete. In another, it was cannabis. “It’s fun, it’s cool,” Tenner says of the job.
The special master in the trump the case faces a daunting task. Whoever the judge appoints for the role “should be someone with a security clearance,” Cohen says, the Cleveland-based attorney. “You want someone with a lot of seriousness. A retired judge, someone who was a federal judge.” In its decision on Monday, Cannon, who was nominated by Trump in 2020, ordered the former president’s lawyers and the Justice Department to submit the names of possible appointees this week.
Trump’s legal team had argued that a special master was needed to assess whether certain documents seized by the FBI should be returned to Trump because of attorney-client privilege and executive privilege. Lawyers for the Justice Department argued that a special master would delay the department’s investigation and was unnecessary because its own “screening team” was evaluating the documents.
In the end, Cannon decided that a special master was needed “to provide at least the appearance of fairness and integrity in the extraordinary circumstances”.
Whoever takes on the role is sure to face a level of notoriety to which special masters are not accustomed.
“I would be afraid of the consequences of a decision against the president,” says Lawrence Lessig, a professor at Harvard Law School, referring to Trump. “I would wonder what the consequences of my decision would be – not just for the case – but also for people watching the case. MAGA people.
Lessig knows from experience that taking on the role of special master can be tricky. He served as special counsel in Microsoft’s antitrust case in the late 1990s at the invitation of U.S. District Judge Thomas Penfield Jackson. “It was wonderful because it was an incredibly complicated case,” says Lessig, a technology expert. But he also says he has received “hateful” phone messages and “threatening” letters from supporters of the company. A federal appeals court eventually removed him from the case after Microsoft objected to his nomination, arguing he was biased against the company.
As a show of goodwill, Lessig said, Microsoft executives eventually invited him to a dinner party at its headquarters in Redmond, Washington. “They were trying to apologize and say it was all business,” he said, adding there were no hard feelings. “I took the money I made and liquidated it in a new Audi.”
So where did this whole special master thing start?
In England hundreds of years ago, says Amalia Kessler, a professor at Stanford University School of Law. In the 15th century, she says, British judges entrusted investigative work to clerks known as masters. In the United States, “We called them ‘special’ because they are not a group of masters associated with a particular court but appointed on a special, case-by-case basis”, Kesler said.
The role of special master is mainly known to judges and lawyers who deal with civil litigation. In a particularly well known case, Congress appointed a special master, Kenneth R. Feinberg, to oversee the 9/11 Victims Compensation Fund claims process, a role that included deciding how much money each victim’s family would receive. . Courts have also appointed special masters to oversee troubled prisons and school districts, and redraw the lines of Congress.
Kesler is preoccupied by latitude judges are allowed to choose special masters in their cases. “It’s the Wild West of the law. There are no constraints,” she said. “It’s crazy. Why don’t you set some requirements to make sure they’re competent? It sounds like a recipe for a huge amount of variability.
Merril Hirsh, executive director of an association of special masters, said there had been discussions within the profession about establishing ways to review qualifications and establish lists within the states of special masters qualified for this role.
There have also been discussions about whether the title “master” is appropriate, says Hirsh, given his association with slavery. Similar discussions have taken place in the real estate industry, where some brokers are now referring to “main” chambers as “main” chambers. 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 having a master except a Saint Bernard,” says Hirsh. “It’s just bad branding. We want to promote this profession, and we don’t want to defend a name that misdescribes what we do and that some find inappropriate or insensitive.
Cohen, a former president of the academy, said he voted against the name change. The title of special master, he says, “is a nice honorary title, it carries just the right amount of prestige. You must be in a position of authority. It does what it’s supposed to do.
“Now what am I? he said he was called a “neutral.” “Looks like I was castrated.”
