An executive privilege court fight would immediately put the Justice Department’s investigation into a more aggressive position than the Mueller probe — a key years-long criminal investigation into Trump as president. He was ultimately not charged.
Faced with the unusual situation of prosecuting a former president for actions taken while in office, confronting the issue of privilege reflects the concern the judiciary is taking. That could bring one of the first major court battles over the separation of powers in the January 6 criminal trial.
Former Pence aides testify
Before their recent grand jury testimony, prosecutors, along with attorneys for Short and Jacobs, outlined some questions they would avoid to avoid potential privilege issues, and the People said they were briefed on the matter, with the expectation that they would return to those questions later.
Neither would answer questions about their direct contact with Trump when they testify at the criminal trial in recent weeks, according to two people familiar with the matter.
Both Short, Pence’s former chief counsel, and Jacobs, his former chief counsel, attended a January 4, 2021 Oval Office meeting where Trump pressed Pence to go along with a plan presented by attorney John Eastman to block certification. Election results.
Despite privilege issues, witnesses spent hours answering questions from the grand jury about the pressure campaign against Pence that Trump was part of, while avoiding direct questions about the former president, according to people briefed on the matter.
Questions from prosecutors indicated that investigators were zeroing in on the role of Trump and Eastman, Trump lawyer Rudy Giuliani and others in a broader scheme to block the certification of election results and organize fake voters to keep Trump. He remained in office despite losing the election, according to People’s Interpretation.
The extent of the former president’s executive privilege to protect testimony in a criminal investigation remains unsettled law, and Justice Department officials hope Trump will try to substantiate his claims at a Jan. 6 House Select Committee hearing.
And clearly, given the privilege and barriers to access to other witnesses, prosecutors are still in the early stages of investigating any direct Trump role. Prosecutors appear to be more involved in their investigation into Trump’s associates who masterminded the scheme to keep him in office, the people said.
Short is represented by Emmett Flood, a prominent Washington lawyer known as a staunch defender of presidential privilege.
An attorney for Flood and Jacobs declined to comment for this story. An attorney handling privilege issues for Trump did not respond to CNN’s inquiries Thursday.
Earlier, the courts ruled against Trump’s efforts to protect his White House documents from being turned over to the House Select Committee.
The Biden administration largely chose not to press privilege claims on Jan. 6, making Trump’s claims as a former president weaker than they would have been if he was still in office.
If another court battle over the Jan. 6 grand jury proceedings to investigate Trump goes ahead, officials overseeing the investigation believe the Justice Department has a strong chance of winning such a fight.
Courts generally find that executive privilege claims are more easily disposed of in criminal investigations than in congressional investigations.
Past attempts to pierce executive privilege
In 1974, the Supreme Court ruled to release the Watergate tapes during the impeachment of then-President Richard Nixon, despite a presidential executive order, a landmark ruling that accelerated Nixon’s presidency.
And during the Clinton administration, a federal court of appeals in DC ruled against executive privileges several times — and did so relatively quickly. The Supreme Court did not stand in the way of the criminal investigators then.
Former White House counsel Neil Eccleston said this week that “I think the Justice Department will have an easy time winning this” if an issue arises with Trump trying to block the DOJ investigation. Eccleston argued privilege issues in court on behalf of the White House in the 1990s.
“It will happen in days. It won’t take long,” Eggleston added.
Eccleston described the Nixon ruling as a balancing test that judges must apply, where the president’s need for confidentiality is often insufficient to overcome the demands of a federal grand jury investigation.
The investigation into Clinton, conducted by then-special counsel Kenneth Starr, ended in the Justice Department’s favor less than five months after the Clinton administration hoped to keep it secret from the White House counsel’s office. And a separate criminal investigation into a Clinton cabinet member, where investigators combed through documents and took two years to reach a final verdict.
In recent months in Trump’s National Archives case against House investigators, the Supreme Court resolved the dispute in three months.
This story has been updated with additional details.