SEPTEMBER 9, 2022
Lawyer Kenneth Feinberg estimates he’s taken on about “half a dozen” of the nation’s most difficult tasks as special master over the years.
He oversaw the September 11th Victims Compensation Fund during former President George W. Bush’s administration. He administered a similar fund for victims of the Deepwater Horizon spill during the Obama administration. He also oversaw CEO pay for companies that received government bailouts during the 2008 financial crisis.
However, in an exclusive interview, he told CBS News senior investigative correspondent Catherine Herridge that if he were asked to be special master in the case involving the documents seized from former President Donald Trump’s Florida residence, the answer would be no.
“I would not,” Feinberg said Friday. “I don’t have that skill set. I have some security clearances over the years. I still have security clearances. But that level of security clearance, coupled with the special — really, the special expertise that I think an individual would have to have, leads me to believe that I’m not the right person for this assignment.”
On the question of whether he’s been approached, Feinberg retorted, “Thank goodness, no.”
Feinberg noted that the special master will have to “brace” themselves for a “politically charged assignment” in which they could receive credible threats and have their background scrutinized.
“This is a political appointment,” Feinberg said. “Now I agree there are very substantive national security concerns. But this is already, you know, if you’re asked to do this, brace yourself one side or the other, they’re going to be looking at how you behaved in grammar school. And never mind it was 70 years ago, or 60 years ago. I mean, this is political warfare of the type that we’ve been seeing over the last decade. And it’s very, very problematic.”
A special master is an independent third party appointed by a court, or by the executive branch, to carry out action on its behalf. The range of functions performed can vary widely. In this case, Feinberg said the skills necessary for the job are “unique.”
“First of all, does the special master have the resume – highly sensitive national secret information? Is there somebody out there with that experience, and that clearance, to review these highly sensitive documents,” Feinberg said.
He noted that in instances where he has been appointed, like the Deepwater Horizon and 9/11 cases, “there was no objection” to his appointment and “all sides” were “hoping for a prompt resolution.”
Those cases involved compensation for victims. The Trump case, he said, is different.
“This case will be politically charged from the get-go,” Feinberg said. “Will somebody be willing to brace themselves to take the heat? Because there will be heat.”
Feinberg also questioned whether the courts should even have a role in assessing the security threat posed by the storage of those documents with classified markings which were found at Mar-a-Lago.
“The idea that the judiciary will intervene in what is essentially a highly skilled executive branch function of classifying documents – I don’t think it is a good idea for the judiciary to get involved,” he said, noting that the matter of appointing a special master for the case will be reviewed by the appellate court.
“And the idea that this is a judicial function, I’m very dubious about that,” Feinberg said. “The department and the national security agencies, the CIA, they have information and valuable insight into all of this. And I’m not sure a federal judge, district court or appellate court really has that sophistication and that experience to be able to make those conclusions second guessing allegedly.”
The Justice Department and Trump’s legal team were to submit a list of potential special master candidates acceptable to both parties by Friday. Feinberg doubts that a “consensus candidate” exists.
“I think it’s very likely that the judge will have to appoint someone that she deems appropriate over the objection of one side or the other,” he told Herridge. “I don’t see the two sides getting together. But again, that’ll await an appellate review if there’s going to be a special master at all.”
In any case, he has some advice for any of those possible candidates
“What makes these assignments so unique and so difficult is the emotional overhang, the political overhang,” Feinberg said. “And I would ask, or I would suggest to anybody who’s considering this: think long and hard. There are people over the years in the national security apparatus who have wonderful resumes, exemplary service to the people of this country. Now, you’re being asked to take on an assignment that has the potential to tarnish that reputation and bring you into the political polarization of