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 arbiter materials seized last month from Donald J. Trump’s home in Florida.
As the department decides whether to appeal the ruling on a special master, it is balancing a desire to speedily resolve the inquiry with the need to limit an expansive view of executive power.
The ruling, issued by Judge Aileen M. Cannon on Monday, is more likely to delay than derail the investigation into Mr. Trump’s retention of highly classified documents belonging to the government. But 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 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 is a very hard 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 oppose the judge’s call for the arbiter, known as a special master, by a midnight deadline on Friday. The question is whether they will mount a narrow approach geared at extracting relatively small concessions from the judge, to speed up the independent review, or if they plan a more comprehensive, riskier appeal to reverse what they see as a dangerous enhancement of presidential power.
There is no easy path for Mr. Garland’s team.
The ruling would effectively shut down the government’s use of the documents for the criminal inquiry into whether the former 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 continue assessing the potential risks to national security caused by 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 familiar with the discussions said.