WASHINGTON — The Justice Department faces a posh and consequential decision this week: whether to appeal all, part or none of a court order requiring it to show over to an independent arbiter materials seized last month from Donald J. Trump’s home in Florida.
The ruling, issued by Judge Aileen M. Cannon on Monday, is more prone to delay than derail the investigation into Mr. Trump’s retention of highly classified documents belonging to the federal government. However 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 top officials, who until the ruling had controlled the general public narrative surrounding the inquiry.
The case presents the department with several tough calls, requiring a careful balance between the desires to speedily resolve the investigation and to limit an expansion of executive power espoused by Mr. Trump’s team.
“It’s a really hard series of selections,” said Mary McCord, who held several top positions on the Justice Department from 2014 to 2017 within the Obama administration.
Department officials are expected to oppose the judge’s call for the arbiter, often called a special master, by a midnight deadline on Friday. The query is whether or not they are going to mount a narrow approach geared at extracting relatively small concessions from the judge, to hurry up the independent review, or in the event that they plan a more comprehensive, riskier appeal to reverse what they see as a dangerous enhancement of presidential power.
Over the past several days, senior officials on the department have been huddling to game out options. They vary from the relatively secure step of filing a motion with Judge Cannon, who was appointed as a federal judge in Florida by Mr. Trump, to reconsider all or a part of her ruling; to requesting that the court limit the time and scope of the special master’s review; to the riskier move of appealing the ruling as much as the eleventh Circuit Court in Atlanta, which is stocked with no fewer than six Trump appointees.
There isn’t any easy path for Mr. Garland’s team.
The ruling would effectively shut down the federal government’s use of the documents for the criminal inquiry into whether the previous president violated the Espionage Act and obstructed investigators by hoarding and concealing materials at his Florida estate, Mar-a-Lago. It still allows the intelligence agencies to proceed assessing the potential risks to national security attributable to the insecure storage of highly classified documents around Mr. Trump’s private club and residence.
In an unusual move, Judge Cannon signaled her intention of granting Mr. Trump’s request for a special master before she issued her order, but its breadth forced the department to recalibrate its plans, officials aware of the discussions said.
The choice also left many critical questions unanswered, including whether prosecutors can use information they’ve gathered after weeks of access to the seized trove to pursue other investigative leads, or whether or not they can proceed to interview witnesses or subpoena documents not related to the greater than 11,000 files retrieved during last month’s search.
Ms. McCord said that while the federal government faced a tricky selection, one possible option can be to just accept the appointment of a special master, then ask the judge to set a firm deadline for the review to be accomplished. Prosecutors could also ask that the fabric be quickly sifted, so the whole lot not subject to a challenge by Mr. Trump’s lawyers can be immediately returned to investigators, and that the special master send documents back to the department as soon as they were deemed unobjectionable, she added.
Key Revelations From the Jan. 6 Hearings
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Key Revelations From the Jan. 6 Hearings
Making a case against Trump. The House committee investigating the Jan. 6 attack is laying out a comprehensive narrative of President Donald J. Trump’s efforts to overturn the 2020 election. Listed below are the predominant themes which have emerged to date from eight public hearings:
Key Revelations From the Jan. 6 Hearings
Pressuring Pence. Mr. Trump continued pressuring Vice President Mike Pence to associate with a plan to overturn his loss even after he was told it was illegal, in response to testimony laid out by the panel in the course of the third hearing. The committee showed how Mr. Trump’s actions led his supporters to storm the Capitol, sending Mr. Pence fleeing for his life.
The department “must weigh their very own interests in moving forward with the investigation, and ask the court for a reasonably short turnaround time,” said Ms. McCord, a professor at Georgetown University Law Center. “There are plenty of things they’ll do to make it manageable, in favor of forgoing an appeal which could take months, and possibly greater than a yr to be decided.”
Andrew C. McCarthy, a former federal prosecutor who usually writes for the conservative-leaning National Review, initially believed prosecutors would quickly appeal, but now thinks the department could find yourself focusing its efforts on choosing a special master who will get the job done quickly, with a minimal disruption of the investigation.
Mr. McCarthy said department officials might be pondering that “it would probably be price their while to swallow hard and wait if the person is a serious candidate, fairly than roll the dice on an appeal.”
But Judge Cannon’s decision is solely too broad and provocative to easily ignore, some legal experts say. She not only rejected the Justice Department’s argument that Mr. Trump be treated like several other investigative subject, but additionally suggested that a number of the material taken from Mar-a-Lago is likely to be subject to claims of executive privilege.
In doing so, the judge wrote that she was “not convinced” of the federal government’s assertion that executive privilege didn’t apply to the documents recovered from Mar-a-Lago, making a process by which Mr. Trump’s lawyers could potentially seek to reclaim materials related to his internal communications as president. The federal government cited legal precedent, arguing that such protections lapsed when Mr. Trump left office.
“It’s all so weird and disruptive,” Alan Rozenshtein, a former Justice Department official who now teaches on the University of Minnesota Law School, said of the ruling. “But I believe D.O.J. does need to appeal.”
If the department chooses to pursue an all-out challenge of Judge Cannon’s ruling, then loses on appeal, it risks enshrining a broader and potentially more elastic definition of executive authority in precedent which may jeopardize efforts to carry Mr. Trump, and future presidents, to account.
Daniel C. Richman, a former federal prosecutor and a law professor at Columbia University, said that if the documents case became a referendum on redefining executive privilege, fairly than an easy criminal investigation rooted in statute and established precedent, it could affect the Justice Department’s expanding investigation into Mr. Trump’s actions on Jan. 6, 2021.
Does the department want “an opinion on the market that has a very 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. 6. riot, said the department had few good options.
“To some extent, deciding to not challenge the choice in any respect — and just accepting the special master — is likely to be the safest course of all, since it’s at all times uncharted waters at any time when you are taking something to an appeals court,” he said.
Liberals have urged Mr. Garland to appeal the ruling on principle. And over the past week, they’ve picked up an unlikely ally — William P. Barr, Mr. Trump’s former attorney general, who told Fox News on Tuesday that Judge Cannon’s ruling “was incorrect, and I believe the federal government should appeal it.”
The Justice Department and Mr. Trump’s legal team declined to comment.
But advisers to the previous president are already proceeding as if the appointment of the special master were an achieved fact — and have begun considering several potential candidates who can be acceptable to the court, including former judges, in response to an individual aware of the situation.
Maggie Haberman and Charlie Savage contributed reporting.