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The Justice Department Must Weigh Multiple Options as It Considers Its Response to Trump’s Ruling

PoliticsThe Justice Department Must Weigh Multiple Options as It Considers Its Response to Trump's Ruling

This week, the Justice Department will have to make a difficult and important decision: whether to appeal all, part, or none of a court order that requires it to turn over to an independent adjudicator items that were taken last month from Donald J. Trump’s residence in Florida in Florida.

It is more possible that the inquiry into Mr. Trump’s retention of highly sensitive materials that belong to the government would be delayed rather than derailed as a result of the order that was given by Judge Aileen M. Cannon on Monday. However, the judge’s forthright and comprehensive defence of Mr. Trump’s rights as a former president offers a challenge for Attorney General Merrick B. Garland and his senior staff. Prior to the order, they had been in charge of controlling the public narrative about the investigation.

The inquiry provides the department with a number of difficult choices, one of which requires striking a careful balance between the wishes to swiftly conclude the probe and the desire to restrict an extension of presidential authority advocated by Mr. Trump’s team.

According to Mary McCord, who served in numerous high-level posts at the Justice Department during the Obama administration from 2014 to 2017, “It is a really challenging sequence of judgments,”

By the time the deadline at midnight on Friday rolls around, department officials are certain to have voiced their opposition to the judge’s request for the arbitrator, also known as a special master. The question is whether they will pursue a limited strategy with the goal of obtaining relatively small concessions from the judge in order to speed up the independent review, or whether they will pursue a more comprehensive and riskier appeal in order to reverse what they see as a dangerous enhancement of presidential power. The answer to this question will determine which strategy they will pursue.

Over the course of the last several days, top officials from the department have been conferring in order to discuss their available alternatives. They range from the relatively safe move of filing a motion with Judge Cannon, who was appointed as a federal judge in Florida by Mr. Trump, to reconsider all or 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 up to the 11th Circuit Court in Atlanta, which is stocked with no fewer than six Trump appointees.

The group led by Mr. Garland will not have an easy time of it.

The decision would essentially prevent the government from using the papers as evidence in the criminal investigation into whether or not the former president violated the Espionage Act and impeded investigators by storing and hiding items at his resort in Florida, Mar-a-Lago. It still provides the intelligence agencies with the ability to go on with their evaluation of the possible threats to national security posed by the unsecured storage of highly sensitive information in the vicinity of Mr. Trump’s private club and estate.

In an uncommon move, Judge Cannon gave a hint that she intended to accept Mr. Trump’s request for a special master before she published her decision. However, the scope of the request required the department to readjust its preparations, according to individuals who were involved with the negotiations.

The decision also left many important questions unanswered, such as whether prosecutors can use the information they have gathered after weeks of access to the seized trove to pursue other investigative leads, or whether they can continue to interview witnesses or subpoena documents that are not related to the more than 11,000 files retrieved during the search that took place last month.

If the department makes the decision to mount an all-out challenge of Judge Cannon’s ruling and then loses on appeal, it runs the risk of enshrining in precedent a broader and potentially more elastic definition of executive authority. This could put at risk efforts to hold Mr. Trump and future presidents accountable for their actions.

Daniel C. Richman, a law professor at Columbia University and a former federal prosecutor, said that if the documents case turned into a referendum on redefining executive privilege, rather than a straightforward 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 January 6, 2021. Richman said this because he believes that the Justice Department has a responsibility to ensure that the executive branch is protected from improper interference.

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