October 5, 2022

Garland faces tough calls to respond to the Trump administration

WASHINGTON — The Justice Department faces a complex and consequential decision this week: Florida’s Donald J. Should an independent arbitrator appeal all, part, or anything of a court order requiring items seized from Trump’s home last month to be turned over?

Judge’s verdict Eileen M. Canon On Monday, Mr. The investigation into Trump’s retention is more likely to be delayed than derailed. But as a former president Mr. Defense Attorney General Merrick B. This creates a dilemma for Garland and his superiors.

For speedy resolution of the inquiry, Mr. The case offers several tough calls for the department to limit the expansion of executive authority embraced by Trump’s team and to carefully balance options.

“These are very difficult decisions,” said Mary McCord, who held several top Justice Department posts in the Obama administration from 2014 to 2017.

Department officials are expected to protest the judge’s call for arbitration. Known as a special master, by Friday’s midnight deadline. The question is whether they will take a narrower approach to extract relatively small concessions from the judge and expedite an independent review, or plan a more comprehensive, risky appeal to roll back what they see as a dangerous expansion of presidential power.

For the past several days, senior officials in the department have been torn between options. As a federal judge in Florida Mr. They range from a relatively safe move for Trump-appointed Judge Cannon to reconsider all or part of his ruling; to require the court to control the timing and scope of the special master’s review; No fewer than six Trump appointees are in the dangerous process of appealing to the 11th Circuit Court in Atlanta.

Mr. Garland’s team has not had an easy road.

The ruling would effectively block the government’s use of the documents in a criminal investigation into whether the former president violated the Espionage Act and obstructed investigators by hiding items at his Florida estate, Mar-a-Lago. Mr. It allows intelligence agencies to continually assess potential risks to national security from insecure storage of highly classified documents around Trump’s private club and residence.

In an unusual move, before Judge Cannon issued his order, Mr. Trump signaled his willingness to grant the request, but its breadth forced the department to reconsider its plans, officials familiar with the discussions said.

The decision leaves open a number of important questions, including whether they can continue to pursue other investigative leaders using information they gathered after weeks of reaching out to captured traitors, or whether they can continue to question more than 11,000 unrelated witnesses or subpoena documents. The files were recovered during last month’s search.

While the government faces a tough choice, Ms McCord said one possible option would be to accept the appointment of a special master and ask the judge to set a firm time frame for the review to be completed. Prosecutors may ask that the property be divided quickly, so Mr. Anything not challenged by Trump’s lawyers will be immediately returned to investigators, and the special master must return the documents to the department once they are deemed nonobjectionable. was added.

The department “must weigh their own interests in moving the investigation forward and ask the court for a very short time,” said McCord, a professor at the Georgetown University Law Center. “There are many things they can do to deal with that, in favor of avoiding an appeal, which could take months, and a decision could take more than a year.”

Andrew C. McCarthy, a former federal prosecutor who writes regularly for the conservative-leaning National Review, initially hoped prosecutors would file an appeal soon, but now thinks the department can focus on selecting a special master who can get the job done quickly. , with minimal disruption of the investigation.

Mr. McCarthy said department officials “may feel that if the person is a serious candidate, rather than him rolling the dice on an appeal, they’ll benefit from swallowing hard and waiting.”

But some legal experts say Judge Cannon’s decision is too broad and provocative to simply ignore. Mr. Not only did he reject the Justice Department’s argument that Trump would be treated like other investigation subjects, he also agreed with his lawyers that some of the material taken from Mar-a-Lago may be subject to executive privilege.

In doing so, the judge wrote that he was “not convinced” by the government’s claim that executive privilege did not apply to the documents recovered from Mar-a-Lago, which Mr. Trump’s lawyers are developing a process to get the items back. Related to his inner connections as President. Mr. The government cited legal precedent, arguing that such protections lapsed when Trump left office.

“It’s all very strange and disruptive,” Alan Rozenshtein, a former Justice Department official who now teaches at the University of Minnesota Law School, said of the ruling. “But I think the DOJ should appeal.”

If the Department wishes to pursue a full challenge Judge Cannon’s judgmentLater unsuccessful on appeal, it was Mr. The precedent risks setting a broad and inflexible definition of executive power that could undermine efforts to hold Trump and future presidents to account.

Former federal prosecutor and Columbia University law professor Daniel C. Richman said the documents could affect the judiciary if they become a referendum on redefining executive privilege rather than a straightforward criminal investigation rooted in case law and established precedent. On January 6, 2021 Mr. Expands investigation into Trump’s actions

Does the department “want to issue an opinion that takes a truly comprehensive and dangerous view involving executive privilege?” asked Mr Richman.

Jan. 6. Senior criminal defense attorney Stanley Brandt, who represented Trump aide Dan Scavino with the House committee investigating the riots, said the department has some good prospects.

“To some extent, deciding not to challenge the decision — and accepting the special tutor — may be the safest course of all, because whenever you take something to an appellate court it’s always uncharted waters,” he said.

The Liberals said they would appeal the ruling on principle. Garland has emphasized. In the past week, they have chosen an unlikely ally – Mr. Trump’s former attorney general, William B. Barr told Fox News on Tuesday that Judge Cannon’s ruling was “wrong, and I think the government should appeal it.”

Department of Justice and Mr. Trump’s legal team declined to comment.

But the former president’s advisers are already treating the special master appointment as a fait accompli — and have begun considering a number of possible candidates for the court, including former judges, according to a person familiar with the situation.

Maggie Haberman And Charlie Savage Contributed report.