Justice Department faces tough appeals as it assesses response to Trump’s decision

Justice Department faces tough appeals as it assesses response to Trump’s decision

Attorney General Merrick Garland speaks at a law enforcement convention in Baton Rouge, Louisiana, March 18, 2022. (Kenny Holston/The New York Times)

Attorney General Merrick Garland speaks at a law enforcement convention in Baton Rouge, Louisiana, March 18, 2022. (Kenny Holston/The New York Times)

WASHINGTON – The Justice Department faces a complex and consequential decision this week: appealing all, part or no court order requiring it to turn over materials seized last month from Donald Trump’s Florida home to an independent arbitrator.

The ruling, issued by Judge Aileen Cannon on Monday, is likely to delay what will derail the investigation into Trump’s withholding of highly confidential documents belonging to the administration. But the judge’s scathing, 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 controlled the public narrative surrounding the inquiry.

The case presents the department with several difficult decisions, requiring a careful balance between a 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 high-ranking positions at the Justice Department from 2014 to 2017 under the Obama administration.

Department officials must object to the judge’s summons to the referee, known as the special master, by midnight on Friday. The question is whether they will mount a narrow approach aimed at extracting relatively small concessions from the judge to speed up independent review, or whether they will plan a more sweeping and risky appeal to reverse what they see as a dangerous increase in presidential power.

In recent days, senior officials in the department have been meeting to throw out options. They range from the relatively safe step of filing a motion with Cannon, who was named a federal judge in Florida by Trump, to reconsidering all or part of his decision; to request that the court limit the time and scope of the special master’s review; for the riskier move to appeal the decision to the 11th US Circuit Court of Appeals in Atlanta, which is stocked with no fewer than six Trump nominees.

There is no easy path for Garland’s team.

The ruling would effectively prevent the government from using the documents for the criminal investigation into whether the former president violated the Espionage Act and obstructed investigators by accumulating and concealing materials at his Florida property, Mar-a-Lago. It still allows intelligence agencies to continue to assess potential national security risks caused by the insecure storage of highly confidential documents around the private club and Trump’s residence.

In an unusual move, Cannon signaled his intention to heed Trump’s request for a special master before issuing his order, but its breadth forced the department to recalibrate its plans, officials familiar with the discussions said.

The ruling also left many critical questions unanswered, including whether prosecutors can use the information they have gathered after weeks of accessing the seized treasure to seek further investigative leads, or whether they can continue to interview witnesses or subpoena documents unrelated to the more than 11,000. suspects. files recovered during last month’s search.

McCord said the government would likely accept the appointment of a special master as a given, but would ask the judge to set a firm deadline for the review to be completed. Prosecutors can also ask for material to be quickly sifted so that anything not challenged by Trump’s lawyers is immediately returned to investigators, and for the special master to send documents back to the department as soon as they are deemed unquestionable, he added.

The department “must weigh its own interests in moving forward with the investigation and ask the court for a very short response time,” said McCord, a professor at the Georgetown University Law Center. “There are a number of things they can do to make it manageable, in favor of forgoing an appeal that can take months and maybe more than a year to decide.”

Andrew McCarthy, a former federal prosecutor who writes regularly for the conservative-leaning National Review, initially believed prosecutors would appeal quickly, but now thinks the department may end up focusing its efforts on selecting a special master who will get the job done quickly. , with minimal disruption of the investigation.

McCarthy said department officials might be thinking that “it will probably be worth the gulp and wait if the person is a serious candidate, rather than rolling the dice on an appeal.”

But Cannon’s ruling is simply too broad and provocative to simply ignore, say some legal experts. Not only did she reject the Justice Department’s argument that Trump be treated like any other investigative subject, but also suggested that some of the material taken from Mar-a-Lago may be subject to claims of executive privilege.

In doing so, the judge wrote that she was “unconvinced” of the administration’s assertion that executive privilege did not apply to documents recovered from Mar-a-Lago, creating a process by which Trump’s lawyers could seek to recover related materials. your internal communications as president. The administration cited legal precedent, arguing that such protections expired when Trump left office.

“It’s all so strange and disturbing,” Alan Rozenshtein, a former Justice Department official who now teaches at the University of Minnesota School of Law, said of the decision. “But I think the DOJ needs to appeal.”

If the department chooses to outright contest Cannon’s decision and loses on appeal, it risks enshrining a broader and potentially more elastic definition of executive authority in precedent that could undermine efforts to hold Trump and future presidents accountable.

Daniel C. Richman, a former federal prosecutor and law professor at Columbia University, said that if the documents case becomes a referendum on redefining executive privilege, rather than a simple criminal investigation rooted in statute and established precedent, this could affect the Justice Department’s decision. expanding the investigation into Trump’s actions on January 6, 2021.

Does the department want “an opinion that takes a truly expansive and dangerous view of what executive privilege encompasses?” asked Richman.

Stanley Brand, a veteran criminal defense attorney who represented Trump aide Dan Scavino in his negotiations with the House committee investigating the Jan. 6 riot, said the department had few good options.

“To some extent, deciding not to contest the decision — 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 said.

Liberals asked Garland to appeal the decision 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 aides to the former president are already proceeding as if the appointment of the special master is a fait accompli — and have begun considering several potential candidates who would be accepted by the court, including former judges, according to a person familiar with the situation.

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