At issue is the executive privilege statements that prosecutors expect the former president to make to conceal some information from the federal grand jury as the criminal investigation moves deeper into the ranks of the prosecutors. White House officials who directly interact with Trump.
The DOJ’s preemptive move is the clearest sign that federal investigators are tracking Trump’s conduct as he tries to prevent the transfer of power to Joe Biden.
An executive privilege court battle would immediately put the Justice Department’s investigation into a more drastic stance than even the Mueller investigation – a major crime investigation that spanned years into the past. with Trump when he was President. In the end he was not charged.
Confronting the issue of privilege reflects the caution the Justice Department is taking as it faces the unusual situation of investigating a former president for actions taken while in office. And it could yield one of the first major separations of powers in the January 6 criminal investigation.
Former Pence aides testify
In light of the grand jury’s recent testimony, prosecutors, along with Short and Jacob’s attorneys, raised a number of questions they would avoid to avoid potential privilege issues, in the hope that they You can come back to those questions at a later date. summary of said problem.
Neither of them responded to questions about their direct interactions with Trump as they testified in the criminal investigation in recent weeks, according to two people familiar with the matter.
Short, Pence’s former chief of staff, and Jacob, his former chief adviser, were both present at a meeting in the Oval Office on January 4, 2021, where Trump pressured Pence to make a plan presented by attorney John Eastman to block certification of Election Results.
Despite the privilege issues, witnesses spent hours answering questions with the grand jury about the pressure campaign on Pence, of which Trump was a part, while avoiding direct questions. about the former president, according to people briefed on the matter.
Questions asked by prosecutors indicate that investigators are focusing on the role of Trump and others such as Eastman, Trump attorney Rudy Giuliani and others in a broader plan to block certified election results and organized a rogue group of electors who would keep Trump in office even though he lost the election, according to people briefed on the matter.
The extent of the former president’s executive privilege to shield testimony in a criminal investigation remains unresolved law, and Justice Department officials believe Trump is likely trying to confirm his claims. himself as he had during the House Select Committee investigation on January 6.
Also clear, given the barriers of privilege and access to other witnesses, is that prosecutors are still in the early stages of considering any direct Trump role. Prosecutors appear to have gone much further in their investigation of Trump’s allies who are orchestrating a plan to keep him in office, the people briefed said.
Short was represented by Emmet Flood, a prominent Washington attorney who was known to be a staunch defender of presidential privilege.
Flood and Jacob’s attorney declined to comment for this story. An attorney who handles privilege matters for Trump did not respond to questions from CNN on Thursday.
Courts had previously ruled against Trump’s attempt to protect his White House papers from being turned over to the House selection committee.
The Biden administration largely chose not to endorse privileged statements around January 6, making Trump’s assertions as a former president weaker than when he was still in office.
If another court battle occurs over the grand jury proceedings investigating Trump on January 6, officials overseeing the investigation believe the Justice Department is likely to win a court battle. such a fight,
Courts have generally viewed claims of executive privilege more readily in criminal investigations than in congressional investigations.
Past attempts to bypass executive privilege
In 1974, the Supreme Court ruled to release the Watergate tapes, despite claims of executive privilege by the president, during the investigation of then-President Richard Nixon, a landmark ruling that pushed accelerated the end of Nixon’s presidency.
And during the Clinton administration, the federal appeals court in D.C. has repeatedly ruled against claims of administration privilege — and has done so relatively quickly. The Supreme Court then did not stand in the way of criminal investigators.
“I think the Justice Department will work hard to sue and win this” if problems arise with Trump’s attempt to block a DOJ investigation, former White House adviser Neil Eggleston said this week. this. Eggleston argued on behalf of the White House on issues of privilege in court in the 1990s.
“This happens in a few days,” added Eggleston. “It didn’t take long.”
Eggleston described a balance test that judges had to use after the Nixon ruling, where the president’s need for secrecy was often insufficient to overcome the need for a grand jury investigation. federal union.
The Clinton investigation, led by then-special counsel Kenneth Starr, delivered a final verdict in favor of the Justice Department in less than five months in pursuit of what the Clinton administration believed should be upheld. secretly with their White House counsel’s office. And a separate criminal investigation into a member of the Clinton Cabinet, where investigators searched documents took about two years to reach a final verdict.
In Trump’s National Archives case against House investigators in recent months, the Supreme Court settled the dispute for three months.
This story has been updated with additional details.