Notice & Comment

A Special Master for the Cohen Case?, by Edward B. Foley

foley.33 (2)As one who has studied the role of impartial institutions for the purpose of resolving electoral disputes—and has advocated the creation of special nonpartisan tribunals in high-profile cases (like Minnesota’s Coleman-Franken recount in 2008)—I wonder whether the appointment of a special master, as Judge Kimba Wood is reportedly considering, is appropriate for the review of the material seized from Michael Cohen,.

If a special master were appointed whenever the government seizes arguably privileged material from an attorney, rather than the government using a “filter team” to prevent violation of the attorney-client privilege, then certainly it would be appropriate to appoint a special master in this case.  But if the standard practice is to rely on the government’s filter team to protect the attorney-client privilege adequately, and not to use special masters in this context, then it is questionable whether it is warranted to appoint a special master in this case just because the client is the U.S. president. It suggests that the president is entitled to special treatment, not available to ordinary citizens, just because he is the president.

To be sure, under the U.S. Constitution there are some issues and situations for which the president must be treated differently than other citizens, simply by virtue of holding the unique office of the presidency. The assertion of executive privilege, as distinct from attorney-client privilege, is a prerogative distinctly belonging to the president.  (As far as I am aware, however, there is no assertion of executive privilege in the specific context of the Cohen documents.  Nor can I see how executive privilege could apply in that context.)  Moreover, as the Supreme Court expressly held in Nixon v. Fitzgerald, the president is entitled to absolute immunity from civil liability for conduct performed as part of his official duties as president.  And of course there remains the longstanding and unsettled question whether a sitting president must be exempt from criminal prosecution, either in state or federal court, until the president’s term in office expires.

But based on publicly available information concerning the materials seized from Michael Cohen, these materials concern his representation of Donald Trump before he became president, or at least regarding matters unrelated to his presidency, and thus do not implicate any reasons for which the legal system might treat an incumbent president different than other citizens.

According to press reports of today’s hearing, Judge Kimba Wood is considering the appointment of a special master, not for the sake of the president himself, but to foster public perception – especially among the president’s political supporters – of his being treated fairly by the legal system. This “interest of avoiding the appearance of bias in the politically charged case” bears similarities to the use of nonpartisan adjudicators to resolve election disputes.

But there is a difference between the two kinds of cases. Disputes over the counting of votes are inherently partisan: the competing candidates from opposing political parties are necessarily adversarial, as each side seeks rulings from the adjudicator that will move the vote count in that side’s favor.  The dispute in the Cohen case is not inherently partisan in the same way: it is not a fight between Democrats and Republicans over an electoral outcome.  It is not even as inherently partisan as the pending litigation before the Supreme Court over the issue of gerrymandering, which pits the parties against each other in the fight over legislative redistricting in an effort to make the redrawn map more favorable to one side or the other.

There are many legal issues that have partisan overtones, and obviously any litigation in which a major political figure, like the president, is a party in interest will have political ramifications.  But if a special nonpartisan tribunal is necessary for all these cases, it suggests our regular legal system is inherently unreliable in handling any dispute with partisan implications.  That’s a very dangerous message to send: if it’s not true, it shouldn’t be fostered; and if it has become true, America is in serious trouble.

Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case.  If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).


Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and Director of Election Law @ Moritz at The Ohio State University College of Law. Follow him on Twitter: @Nedfoley.

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