U.S. District Judge Aileen Cannon has granted former President Donald Trump's request to appoint a special master to review documents seized from his Florida residence in an FBI search on August 8.
Cannon, a Trump-appointee confirmed by the Senate in 2020, has given Trump's team and the Department of Justice (DOJ) until Friday to submit lists of proposed candidates to serve as special master.
Several social media users jokingly suggested that former President Barack Obama could fill the role because he may have the necessary security clearance to review classified documents.
The Claim
Following Judge Cannon's ruling on Monday, some social media users suggested that former President Obama could serve as special master. Some pointed to the fact he may have the right to view classified information as a former president.
"Does @BarackObama still have clearance? He should be the special master," wrote Twitter user Tim Maliyil in one typical tweet.
"You know who already has the security clearance necessary to be Trump's special master? Barack Obama," wrote activist Andrea Junker, in a tweet that gathered more than 66,000 engagements.
You know who already has the security clearance necessary to be Trump’s special master? Barack Obama.
— Andrea Junker (@Strandjunker) September 5, 2022
The Facts
The FBI found a number of classified documents during the search of Mar-a-Lago and those documents included top secret material. In order to review that material, the special master will either have to have the necessary security clearance already or will have to be granted it.
Former presidents do not have security clearance by default, but are often given access to some classified material as a courtesy. It is not clear if former President Obama would be authorized to review all the documents seized by the FBI.
Special masters are essentially third party attorneys appointed to carry out a function by a court, in this case the review of documents seized from Mar-a-Lago.
Obama would be an unusual choice for the role despite being a Harvard-educated attorney. Special masters are often judges or retired judges, though they can also be highly experienced prosecutors or defense attorneys.
It would be unprecedented for a former president to be appointed to the role, particularly given the well-known antagonism between him and former President Trump, and the fact they belong to competing political parties.
Obama has never served as a judge and it seems likely in a high profile case such as this that the court and the parties will opt for an experienced judge, who can be viewed as totally impartial.
Moreover, both Trump's legal team and the DOJ have been tasked with producing lists of possible candidates to serve as special master. It appears extremely unlikely that either side will name Obama as a potential choice.
Though special masters are rare in criminal cases, the Federal Rules of Civil Procedure on disqualification of potential special masters offer an insight into the issues that may arise if Obama were chosen.
Rule 53 (C) (2) states: "A master must not have a relationship to the parties, attorneys, action, or court that would require disqualification of a judge under 28 U.S.C. §455, unless the parties, with the court's approval, consent to the appointment after the master discloses any potential grounds for disqualification."
U.S.C. §455 applies to justices, judges and magistrate judges and requires disqualification based upon "a personal bias or prejudice concerning a party" as well as a number of other grounds.
Trump's attorneys would very likely object to Obama filling the role of special master on that basis, especially given Trump's widely-reported antagonism towards his predecessor.
It's also important to note that DOJ may appeal Judge Cannon's ruling to the U.S. Court of Appeals for the 11th Circuit and, if they receive a favorable ruling, there may be no special master appointed after all.
Cannon's decision has been strongly criticized by some legal experts and may be open to successful challenge.
Newsweek has reached out to the Department of Justice and Barack Obama for comment.
The Ruling
Needs Context.
The suggestion that former President Obama could serve as special master in the Mar-a-Lago documents case lacks necessary context.
While his appointment is hypothetically possible, in the broadest technical sense, there is almost no practical route for him to even be considered for the role, not least because the candidate would have to be approved by both parties involved.
FACT CHECK BY NEWSWEEK
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Darragh Roche is a U.S. News Reporter based in Limerick, Ireland. His focus is reporting on U.S. politics. He has ... Read more
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