According to people briefed on the situation, Justice Department prosecutors are preparing to fight in court to compel former White House officials to testify about then-President Donald Trump’s conversations and deeds around January 6.
As the criminal investigation deepens into the ranks of White House officials who directly interacted with Trump, the issue is executive privilege claims that prosecutors anticipate the former president to make to conceal some information from the federal grand jury.
The preemptive action taken by the DOJ is the most glaring indication yet that federal investigators are zeroing in on Trump’s actions as he attempted to block Joe Biden from becoming vice president.
Trump’s status as a former president does not exempt him from the investigation, as Attorney General Merrick Garland has made clear in public remarks. Additionally, he emphasized that they are being careful to “get this right.”
Dealing with the privilege issue demonstrates the caution with which the Justice Department is approaching the unusual situation of looking into a former president’s actions while in office.
Additionally, it might lead to one of the first significant court battles over the division of powers in the January 6 criminal investigation.
The most recent mention of Trump’s efforts to maintain secrecy was made during the federal grand jury testimony of Marc Short and Greg Jacob, two of Mike Pence’s close associates.
According to the people briefed on the situation, before Short and Jacob’s recent grand jury testimony, the prosecution and Short and Jacob’s attorneys discussed some questions they would avoid asking to avoid any potential privilege disputes, with the idea that they could bring those questions up later.
Both testified in the criminal investigation in recent weeks, but neither would address inquiries about their direct interactions with Trump, according to two people with knowledge of the situation.
Short, Pence’s former chief of staff, and Jacob, his former chief counsel, both attended a meeting in the Oval Office on January 4, 2021, where Trump persuaded Pence to support a proposal made by lawyer John Eastman to prevent certification of the election results.
People briefed on the situation claim that the witnesses spent hours speaking to the grand jury about the pressure campaign against Pence that Trump participated in despite the privilege issues. They avoided direct questions about the former president.
According to the people briefed, the questions prosecutors posed suggested that investigators were focusing on the part played by Trump and others, including Eastman and Trump lawyer Rudy Giuliani, in a larger plot to thwart the certification of election results and assemble a group of fictitious electors who would keep Trump in office despite losing the election.
According to one source, Jacob and Short have avoided some questions regarding what Trump said around January 6 in their dealings with the Justice Department thus far like how they handled the House Select Committee.
Justice Department officials believe Trump will attempt to assert his claims in the same way he did in the House Select Committee’s investigation on January 6. The extent of a former president’s executive privilege to shield testimony in a criminal investigation is still an issue of law, and officials believe Trump is likely to do so.
The fact that prosecutors are still in the early stages of looking into any direct Trump role is also evident given the challenges with privilege and the outreach to other witnesses. According to the people briefed, prosecutors appear to be much further along in their investigation of Trump’s allies who were running the plan to keep him in office.
Emmet Flood, a well-known Washington attorney who is well-known for being a fervent supporter of presidential privilege, is Short’s attorney.
For this story, Flood and Jacob’s attorney declined to comment.
Inquiries from CNN on Thursday went unanswered by a lawyer representing Trump in privilege disputes.
Trump has attempted to prevent the transfer of his White House records to the House select committee, but courts have previously rejected his efforts.
Since the Biden administration has largely opted not to assert privilege claims around January 6, Trump’s claims as the former president are weaker than if he were still in office.
Officials in charge of the investigation think the Justice Department will likely prevail in any future court battles relating to the January 6 grand jury proceedings investigating Trump.
In contrast to congressional investigations, courts have generally believed that executive privilege claims are more easily disproved in criminal investigations.
attempts in the past to violate executive privilege
During the Richard Nixon investigation in 1974, the Supreme Court decided to release the Watergate tapes despite Nixon’s assertion of presidential executive privilege. This decision set a precedent and accelerated Nixon’s departure from office.
Additionally, numerous times during the Clinton administration, the federal court of appeals in Washington, DC, rejected assertions of administration privilege — and did so fairly quickly. Criminal investigators were not hindered back then by the Supreme Court.
If Trump tries to obstruct a DOJ investigation, former White House counsel Neil Eggleston said this week, “I think it would be effortless for the Department of Justice to litigate and win this.”
For the White House in the 1990s, Eggleston argued the privilege arguments in court.
This happens within days. It doesn’t take long to do this, Eggleston continued.
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A federal grand jury investigation’s needs are frequently insufficient to outweigh the need for presidential secrecy, as described by Eggleston in the Nixon ruling’s balancing test.
In less than five months of pursuing what the Clinton administration thought should be kept secret from its White House counsel’s office, the Kenneth Starr-led investigation into Clinton led to a final decision in the Justice Department’s favour. Additionally, it took about two years for a criminal investigation into a member of the Clinton Cabinet wherein investigators requested documents to come to a conclusion.
The Supreme Court reached a decision in the recent case involving Trump’s National Archives and the House investigators in three months.
