WASHINGTON — The Justice Department faces a complicated and consequential selection this week: whether or not to appeal all, aspect or none of a court order requiring it to turn more than to an independent arbiter supplies seized final month from Donald J. Trump’s property in Florida.
The ruling, issued by Judge Aileen M. Cannon on Monday, is additional probably to delay than derail the investigation into Mr. Trump’s retention of extremely classified documents belonging to the government. But the judge’s blunt, far-reaching defense of Mr. Trump’s rights as a former president poses a dilemma for Attorney General Merrick B. Garland and his best officials, who till the ruling had controlled the public narrative surrounding the inquiry.
The case presents the division with various hard calls, requiring a cautious balance among the desires to speedily resolve the investigation and to limit an expansion of executive energy espoused by Mr. Trump’s group.
“It is a very hard series of decisions,” mentioned Mary McCord, who held various best positions at the Justice Department from 2014 to 2017 in the Obama administration.
Department officials are anticipated to oppose the judge’s contact for the arbiter, recognized as a specific master, by a midnight deadline on Friday. The query is whether or not they will mount a narrow method geared at extracting somewhat compact concessions from the judge, to speed up the independent evaluation, or if they program a additional complete, riskier appeal to reverse what they see as a risky enhancement of presidential energy.
Over the previous various days, senior officials at the division have been huddling to game out choices. They variety from the somewhat protected step of filing a motion with Judge Cannon, who was appointed as a federal judge in Florida by Mr. Trump, to reconsider all or aspect of her ruling to requesting that the court limit the time and scope of the specific master’s evaluation to the riskier move of attractive the ruling up to the 11th Circuit Court in Atlanta, which is stocked with no fewer than six Trump appointees.
There is no simple path for Mr. Garland’s group.
The ruling would proficiently shut down the government’s use of the documents for the criminal inquiry into whether or not the former president violated the Espionage Act and obstructed investigators by hoarding and concealing supplies at his Florida estate, Mar-a-Lago. It nevertheless makes it possible for the intelligence agencies to continue assessing the prospective dangers to national safety brought on by the insecure storage of extremely classified documents about Mr. Trump’s private club and residence.
In an uncommon move, Judge Cannon signaled her intention of granting Mr. Trump’s request for a specific master just before she issued her order, but its breadth forced the division to recalibrate its plans, officials familiar with the discussions mentioned.
The selection also left numerous crucial queries unanswered, like whether or not prosecutors can use data they have gathered following weeks of access to the seized trove to pursue other investigative leads, or whether or not they can continue to interview witnesses or subpoena documents not associated to the additional than 11,000 files retrieved through final month’s search.
Ms. McCord mentioned the government was probably to accept the appointment of a specific master as a offered, but ask the judge to set a firm deadline for the evaluation to be completed. Prosecutors could also ask that the material be rapidly sifted, so anything not topic to a challenge by Mr. Trump’s lawyers would be straight away returned to investigators, and that the specific master send documents back to the division as quickly as they have been deemed unobjectionable, she added.
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The division “must weigh their own interests in moving forward with the investigation, and ask the court for a fairly short turnaround time,” mentioned Ms. McCord, a professor at Georgetown University Law Center. “There are a number of things they can do to make it manageable, in favor of forgoing an appeal which could take months, and maybe more than a year to be decided.”
Andrew C. McCarthy, a former federal prosecutor who frequently writes for the conservative-leaning National Review, initially believed prosecutors would rapidly appeal, but now thinks the division could finish up focusing its efforts on picking a specific master who will get the job completed rapidly, with a minimal disruption of the investigation.
Mr. McCarthy mentioned division officials could be considering that “it will probably be worth their while to swallow hard and wait if the person is a serious candidate, rather than roll the dice on an appeal.”
But Judge Cannon’s selection is just also broad and provocative to just ignore, some legal specialists say. She not only rejected the Justice Department’s argument that Mr. Trump be treated like any other investigative topic, but also recommended that some of the material taken from Mar-a-Lago may well be topic to claims of executive privilege.
In carrying out so, the judge wrote that she was “not convinced” of the government’s assertion that executive privilege did not apply to the documents recovered from Mar-a-Lago, developing a procedure by which Mr. Trump’s lawyers could potentially seek to reclaim supplies associated to his internal communications as president. The government cited legal precedent, arguing that such protections lapsed when Mr. Trump left workplace.
“It’s all so weird and disruptive,” Alan Rozenshtein, a former Justice Department official who now teaches at the University of Minnesota Law School, mentioned of the ruling. “But I think D.O.J. does have to appeal.”
If the division chooses to pursue an all-out challenge of Judge Cannon’s ruling, then loses on appeal, it dangers enshrining a broader and potentially additional elastic definition of executive authority in precedent that may well jeopardize efforts to hold Mr. Trump, and future presidents, to account.
Daniel C. Richman, a former federal prosecutor and a law professor at Columbia University, mentioned that if the documents case became a referendum on redefining executive privilege, rather than a simple criminal investigation rooted in statute and established precedent, it could have an effect on the Justice Department’s expanding investigation into Mr. Trump’s actions on Jan. six, 2021.
Does the division want “an opinion out there that has a truly expansive and dangerous view of what executive privilege covers?” Mr. Richman asked.
Stanley Brand, a veteran criminal defense lawyer who has represented the Trump aide Dan Scavino in his dealings with the House committee investigating the Jan. six. riot, mentioned the division had handful of fantastic choices.
“To some extent, deciding not to challenge the decision at all — and just accepting the special master — might be the safest course of all, because it’s always uncharted waters whenever you take something to an appeals court,” he mentioned.
Liberals have urged Mr. Garland to appeal the ruling on principle. And more than the previous week, they have picked up an unlikely ally — William P. Barr, Mr. Trump’s former lawyer common, who told Fox News on Tuesday that Judge Cannon’s ruling “was wrong, and I think the government should appeal it.”
The Justice Department and Mr. Trump’s legal group declined to comment.
But advisers to the former president are currently proceeding as if the appointment of the specific master have been an achieved truth — and have begun taking into consideration various prospective candidates who would be acceptable to the court, like former judges, according to a particular person familiar with the predicament.
Maggie Haberman and Charlie Savage contributed reporting.