WASHINGTON — The Justice Department faces a complex and consequential decision this week: whether to appeal all, part or none of a court order requiring it to turn over to an independent arbitrator materials seized last month from Donald’s home Trump in Florida.
The ruling, issued by Judge Eileen Cannon on Monday, is more likely to delay than derail the investigation into Trump’s retention of top-secret government documents. But the judge’s blunt, sweeping defense of Trump’s rights as a former president poses a dilemma for Attorney General Merrick Garland and his top officials, who until the ruling had controlled the public narrative surrounding the investigation.
The case presents the department with several tough calls, requiring a careful balance between the desire to quickly resolve the investigation and limit the expansion of executive power advocated by the Trump team.
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“It’s a very difficult series of decisions,” said Mary McCord, who held several top positions at the Justice Department from 2014 to 2017 in the Obama administration.
Department officials are expected to object to the judge’s call for the arbitrator, known as a special master, by the midnight deadline Friday. The question is whether they will take a narrow approach aimed at extracting relatively small concessions from the judge to speed up an independent review, or whether they will plan a more comprehensive, riskier appeal to overturn what they see as a dangerous increase in presidential power.
In recent days, senior officials in the department have been scrambling to find playing options. They range from the relatively safe step of filing a motion with Cannon, who was appointed to a federal judge in Florida by Trump, to reconsider all or part of her decision. to ask the court to limit the time and scope of the special master’s review; in the riskiest move of appealing the ruling all the way to the 11th U.S. Circuit Court of Appeals in Atlanta, which has no fewer than six Trump appointees.
There is no easy road for Garland’s team.
The ruling would effectively bar the government from using the documents in the criminal investigation into whether the former president violated the Espionage Act and obstructed investigators by stockpiling and hiding materials at his Florida estate, Mar-a-Lago. It still allows intelligence agencies to continue assessing the potential national security risks posed by the insecure storage of highly classified documents around Trump’s private club and residence.
In an unusual move, Cannon signaled her intention to grant Trump’s request for a special master before issuing her order, but her scope has forced the department to recalibrate its plans, officials familiar with the discussions said.
The ruling also left several critical questions unanswered, including whether prosecutors can use information they’ve gathered after weeks of accessing the seized vault to pursue other investigative leads, or whether they can continue to question witnesses or subpoena documents unrelated to the more than 11,000 files retrieved during the previous month’s search.
McCord said the government is likely to take the appointment of a special master for granted, but is asking the judge to set a firm deadline for the review to be completed. Prosecutors could also request a fast-track review of the material so that anything not disputed by Trump’s lawyers would be immediately returned to investigators and the special master would send documents back to the department as soon as they were deemed inadmissible, he added.
The department “has to weigh its interests in moving the investigation forward and asking the court for a fairly short turnaround time,” said McCord, a professor at the Georgetown University Law Center. “There are a lot of things they can do to make it manageable, to waive an appeal that could take months and maybe more than a year to decide.”
Andrew McCarthy, a former federal prosecutor who writes regularly for the conservative National Review newspaper, initially thought prosecutors would appeal quickly, but now believes the department could end up focusing its efforts on selecting a special master who will the job quickly, with minimal research interruption.
McCarthy said department officials could be thinking “it’s probably worth it to swallow it and wait if the person is a serious candidate, rather than roll the dice on an appeal.”
But the Cannon decision is simply too broad and provocative to ignore, some legal experts say. Not only did he reject the Justice Department’s argument that Trump would be treated like any other subject of an investigation, he also suggested that some of the material obtained from Mar-a-Lago could be subject to claims of executive privilege.
In doing so, the judge wrote that she was “unpersuaded” by the government’s contention that executive privilege did not apply to the documents recovered from Mar-a-Lago, setting up a process by which Trump’s lawyers could potentially seek to recover materials related to his internal communications as president. The administration cited legal precedent, arguing that such protections ended when Trump left office.
“It’s all so strange and disturbing,” Alan Rosenstein, a former Justice Department official who now teaches at the University of Minnesota Law School, said of the decision. “But I think the DOJ should appeal.”
If the department chooses to pursue a blanket challenge to Cannon’s decision, and then loses on appeal, it risks enshrining a broader and potentially more flexible definition of executive power in a precedent that could jeopardize efforts to hold Trump and the future presidents.
Daniel C. Richman, a former federal prosecutor and Columbia University law professor, said that if the documents case becomes a referendum on redefining executive branch privileges, rather than a simple criminal investigation based on the law and established precedent, it will could influence the Justice Department by expanding the investigation into Trump’s actions on January 6, 2021.
Does the department want “an opinion out there that takes a really expansive and dangerous view of what executive privilege covers?” Richman asked.
Stanley Brandt, a veteran criminal defense attorney who has represented Trump aide Dan Scavino in his dealings with the House committee investigating the Jan. 6 riot, said the department had few good options.
“To some extent, deciding not to challenge the decision at all — and just accept the special master — may be the safest course of all, because it’s always uncharted waters any time you take something to an appellate court,” he said.
The Liberals urged Garland to appeal the ruling on principle. And last week, they found an unlikely ally — Bill Barr, Trump’s former attorney general, who told Fox News on Tuesday that Cannon’s decision “was wrong and I think the administration should appeal.”
The Justice Department and Trump’s legal team declined to comment.
But the former president’s advisers are already proceeding as if the appointment of the special master is a foregone conclusion — and have begun considering several potential candidates who would be acceptable to the court, including former judges, according to a person familiar with the situation.
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