Short, Jacob and Cipollone testified before the select committee Jan. 6 but negotiated strict terms to avoid discussing their direct interactions with Trump — a nod to the disputed possibility that such communications could be protected by executive privilege. But such claims are unlikely to hold up in a criminal investigation.
Neil Eggleston, who served as White House counsel to the president, said, “There’s no way any court would say they don’t have to testify about conversations with President Trump in a grand jury investigation — a criminal investigation stemming from that conduct.” Represented Barack Obama and President Bill Clinton in several executive privilege disputes. “If it goes to court, there’s no doubt that the department is entitled to the information. … I think it’s a no-brainer.”
CNN reported last week that Short and Jacobs refused to answer some questions before the grand jury on the grounds of executive privilege, as they did during their Jan. 6 testimony to the House Select Committee. The panel has argued that executive privilege does not apply to almost any conversation related to Trump’s efforts to overturn the election, but the committee has chosen against litigating those thorny and time-consuming issues, instead allowing helpful witnesses — including Short, Jacobs, Cipollone. and others — to answer questions without disclosing specific details of the conversation with Trump that could arguably be privileged. But Trump’s case against the panel and the National Archives was an exception to the panel’s usual approach of seeking to prosecute or delay such cases.
It remains unclear whether Trump intends to formally invoke executive privilege to block any grand jury testimony. A spokeswoman for Trump did not respond to a request for comment on the former president’s plans.
However, Trump is likely to be at a disadvantage in such a legal battle because of his earlier defeat to prevent the National Archives from disclosing thousands of pages of his White House records to the January 6 Select Committee. That battle helped the Justice Department refine the arguments it could play in a grand jury investigation surrounding Trump’s aides.
The department represented the National Archives in that fight, filing detailed briefs opposing Trump’s power to assert executive privilege as a former president over the objections of the sitting president, Joe Biden.
“The extraordinary events of January 6 support President Biden’s determination that the claim of privilege is improper in the context of the record at issue here,” Solicitor General Elizabeth Prelogger argued in a Supreme Court brief, “and . [Trump] Nor did it attempt to propose ‘any specific countervailing requirement for privacy’.
In short, the Justice Department’s grand jury investigation could benefit from Trump’s repeated attempts to block investigators in the past. Even before those court decisions, the department generally had the upper hand in privilege battles. Grand jury subpoenas are legally more powerful than the congressional variety, and the Justice Department will enter any battle with Trump armed with a court-approved strategy to defeat Trump’s executive privilege claims.
The urgency of Congress to investigate the Jan. 6 coup by judges at every level easily overrode Trump’s desire to preserve the secrecy of potentially privileged records.
“Presidents are not kings, and plaintiffs are not presidents,” U.S. District Court Judge Tanya Chutkan wrote in the first ruling against Trump last November. The D.C. Circuit Court of Appeals rejected Trump’s attempt to assert the privilege on several grounds with a 68-page opinion.
“The January 6 Committee … has demonstrated a substantial factual predilection for specifically requesting these presidential documents,” Judge Patricia Millett wrote for the three-member panel. “There is a direct connection between the former president and the events of the day.”
The panel’s victory against Trump unlocked some of the most important evidence against the former president, including handwritten notes, call and visitor logs and speech drafts that show the West Wing struggling to continue its efforts to condemn Trump’s violent supporters on Jan. 6. Flip elections during and after riots.
A separate legal battle — between Mark Meadows, Trump’s last chief of staff, and the select committee on Jan. 6 — could also affect Trump’s ability to include executive privilege issues in the grand jury investigation. In that civil case, Meadows asserted immunity from congressional subpoenas, a power the Justice Department has long afforded to sitting presidents and their immediate advisers.
But the department had not weighed whether similar immunity would apply to former aides to the former president. Indeed, the Justice Department’s only reference to any similar scenario was directly citing President Harry Truman’s decision to resist a subpoena from the House Un-American Activities Committee after leaving office, citing separation of powers concerns. But Truman’s quote carried no legal value, and the case has never been tried.
In a 17-page brief filed in the Meadows case just two weeks ago, the Justice Department said for the first time that a former aide to the former president does not have “absolute” immunity from coerced testimony, and Biden’s decision to pardon him. Any attempt by a former president to claim privilege should take priority.
“Allowing a former president to override the decision of the incumbent would be an extraordinary interference with his ability to discharge his constitutional responsibilities,” the department argued.
Meadows’ attorney, George Terwilliger, strongly criticized the Justice Department’s move, saying, “It’s elected to be the committee’s lawyer and is asking the court to wade into untested legal waters.”
Some executive privilege battles litigated in civil cases have dragged on for years. One, involving a House subpoena for Justice Department documents related to the Operation Fast and Furious gun-running investigation, spanned seven years from 2012 to 2019.
However, grand jury subpoena battles tend to be fast-tracked because courts prioritize criminal investigations.
“The Justice Department can get in front of the courts really quickly, unlike Congress,” said Eggleston, a former Obama White House counsel. “They can do that in a few days. They can work very quickly and they don’t really need to negotiate.
Legal experts have reported grand jury subpoenas to Cipollone and Philbin raise issues beyond traditional executive privilege because they were sometimes giving Trump legal advice that would normally be protected by attorney-client privilege. However, in a 1998 dispute stemming from an investigation into President Bill Clinton’s White House independent counsel Ken Starr, the D.C. Circuit ruled that the government attorney-client privilege must be subpoenaed to grand jury subpoenas in the context of criminal investigations.
“The D.C. Circuit has been very clear that prosecutors have no greater privilege than other counsel when it comes to information they have that is relevant to a grand jury,” said Ryan Goodman, a New York University law professor and co-founder. Just a security blog. “I think it’s highly likely that Trump will lose very quickly because … there is law in the D.C. Circuit contradicting any such claim.”
Ty Cobb, a former White House lawyer for Trump, said he thought some recent court rulings may have wrongly held that a former president cannot claim executive privilege if the current president disagrees.
“I’m not sure that’s right,” said Cobb, who has publicly broken with Trump and called his actions related to Jan. 6 “inappropriate.”
However, Cobb acknowledged that either way, current law says that criminal investigators can also obtain information protected by that privilege if they show a “compelling need” and “any other place” for it.
“If you tick those boxes, you can be questioned,” he said. The attorney noted, however, that some witnesses may choose to invoke their Fifth Amendment rights, or further, any privilege Trump may assert, and that the right against self-incrimination is largely considered sacrosanct.
The early stages of any executive privilege fight over grand jury testimony about Trump will go to Chief Justice Beryl Howell, an Obama appointee and former Senate Judiciary Committee adviser who has repeatedly expressed outrage about the Jan. 6 attack.
Beyond that, Trump’s lawyers could take the case to the D.C. Circuit, which already blocked him in the White House records fight, and to the Supreme Court, which did the same.
The only outward sign of the Justice Department’s hesitancy in executive privilege cases was its decision last year not to pursue criminal charges against Meadows and Trump’s social media guru, Dan Scavino, for defying a House subpoena based on Trump’s directive.
But the department’s recent support for the House in Meadows’ civil case seems to indicate that Justice Department officials are committed to their view that the strong legal argument here is because of the former president’s status and the seriousness of the January 6 events. Trump cannot successfully invoke the privilege to withhold testimony.
In fact, some legal observers say Trump’s chances of succeeding in such a court battle are so remote that he might not even choose to fight it. A privilege battle that attorney John Eastman pursued in court against a House subpoena came after a judge ruled in March that Trump may have committed a crime — obstruction of justice — by trying to interfere with the verification of election votes by Congress on January 6, 2021. .
One potential downside for Trump if he fights the privilege against grand jury demands is a repeat of what happened in the Eastman case, where a judge or multiple judges publicly declared that he broke criminal law. It won’t be a criminal charge, but it will fuel the public perception that Trump crossed the legal line in his activities in trying to overturn President Joe Biden’s victory at the ballot box.
“There is a potential risk for Trump that the judge has substantial evidence that he engaged in criminal conduct,” said Goodman, a law professor at New York University, adding that the possibility could prevent Trump from launching an extraordinary legal battle to protect his advisers. Testifying about conversations with him.