Judge Cannon has selected the special master, which will be the only one of the four proposed individuals that was acceptable to both parties.
The order also includes the instructions to the special master. The special master is charged with determining the issues:
1. Which documents, if any, fall within the attorney-client privilege?
2. Which documents, if any, fall within executive privilege?and
3. Which documents are Presidential Records under the PRA and which are Personal Records?
He must also satisfy himself that all items seized by the FBI are listed on the government’s inventory list.
This is the kind of order that I think the judge should have given to the parties for their review, comments and objections. Two problems jumped out at me:
First, the way the order reads, the documents identified by the taint team will not be reviewed to decide which are presidential records and which are personal records.
Second, the order refers to the parties’ agreement, but it’s not clear whether she’s referring to an existing agreement or to her expectation that the parties will reach agreement as to what should be done with the documents that fall within each category: Presidential and privileged, presidential and not privileged, Personal and privileged, Personal and not privileged.
If there is an existing agreement, it should be in writing and she should have attached it or referred to it by date. If she expects the parties to reach an agreement on something, she should have ordered them to try and reach an agreement on a specific issue, including how any disagreements will be resolved.
But, while the parties may not dispute what should be done with some of the categories, her process doesn’t take account of the fact that government can keep personal, non privileged documents as evidence unless Trump files a motion a motion under Criminal Rule 45(g) and makes the required showing. She hasn’t charged the special master with anything regarding Rule 45(g), and it’s not clear from her order what happens if the parties disagree on what should be done with the documents in each class.
Now, to correct problems in the order, the parties will have to file motions for reconsideration, as opposed to giving input before the order was issued.
Trump will get copies of all documents seized by the FBI. His counsel, one of whom has the necessary security clearances, will review the documents marked classified, as well as any non-documentary evidence.
https://storage.courtlistener.com/recap ... 3.91.0.pdf