Trump conversations January 6: Prosecutors brace for court battle to force former White House officials to testify

At issue are claims of executive privilege that prosecutors expect the former president to make in order to shield certain information from the federal grand jury as the criminal investigation progresses deeper into the ranks of White House officials who directly interacted with Trump.

A court battle favored by the executive would immediately place the Justice Department investigation in a more aggressive position than even the Mueller investigation — a major, years-long criminal investigation into Trump while he was president. He was ultimately not charged.

Dealing with the issue of privilege reflects the care with which the Justice Department deals with the unusual situation of investigating a former president for actions taken while in office. And it could spark one of the first major court battles over the separation of powers in the January 6 criminal investigation.

Former Pence aides testify

Trump’s attempt to maintain secrecy emerged most recently in federal grand jury testimony from Marc Short and Greg Jacob, close aides to former Vice President Mike Pence.

Ahead of their recent grand jury testimony, prosecutors, along with attorneys for Short and Jacob, outlined some issues they would avoid in order to avoid potential privilege issues, in hopes they could revisit these issues at a later date, people briefed on the issue said.

Merrick Garland does not rule out indicting Trump and others at Jan. 6 inquest

Neither would answer questions about their direct interactions with Trump when they testified in the criminal investigation in recent weeks, according to two people familiar with the matter.

Anyway, Pence’s former chief of staff and Jacob, his former chief counsel, were both present at an Oval Office meeting on Jan. 4, 2021, where Trump pressured Pence to agree to a plan. submitted by attorney John Eastman to block certification of the election results.

Despite privilege issues, witnesses spent hours answering grand jury questions about the Pence lobbying campaign, of which Trump was a part, while avoiding direct questions about the former president, according to people briefed on this. topic.

Questions posed by prosecutors indicated that investigators are focusing on the role of Trump and others such as Eastman, Trump attorney Rudy Giuliani and others in the larger plan to block certification. election results and organizing a set of fake voters who would keep Trump in power despite his election loss, according to those briefed.

Jacob and Short’s approach with the Justice Department so far is consistent with what they’ve done with the House Select Committee, a source says, avoiding answering some questions about what Trump said around January 6.
Jan. 6 committee interested in possible use of 25th Amendment against Trump with Mnuchin and other Cabinet talks

The extent of a former president’s executive privilege to shield testimony in a criminal investigation remains unsettled law, and Justice Department officials believe Trump is likely to try to push his claims as he does. did during the House Select Committee investigation on Jan. 6.

It’s also clear, given the hurdles to privilege and the outreach of other witnesses, that prosecutors are still in the early stages of investigating any direct role for Trump. Prosecutors appear to be much further along in their investigation of Trump allies who orchestrated the scheme to keep him in office, those briefed said.

Short is represented by Emmet Flood, a prominent Washington lawyer known to be a strong advocate of presidential privilege.

Flood and Jacob’s attorney declined to comment for this story. A privilege lawyer for Trump did not respond to inquiries from CNN on Thursday.

Previously, courts have ruled against Trump’s efforts to protect his White House papers from being turned over to the House Select Committee.

The Biden administration largely chose not to pursue claims of privilege around Jan. 6, making Trump’s claims as a former president weaker than if he were still in office.

Should another court fight materialize in connection with the Jan. 6 grand jury proceeding investigating Trump, officials overseeing the investigation believe the Justice Department has a strong chance of winning such a fight,

Courts have generally held that claims of executive privilege are more easily eliminated in criminal investigations, compared to congressional investigations.

Past efforts to break through executive privilege

In 1974, the Supreme Court ruled to release the Watergate tapes, despite a claim of presidential executive privilege, during the inquiry into then-President Richard Nixon, a landmark decision that precipitated the end of the presidency. of Nixon.

And under the Clinton administration, the DC federal appeals court repeatedly ruled against claims of administrative privilege — and did so fairly quickly. The Supreme Court then did not stand in the way of criminal investigators.

“I think it would be easy for the Justice Department to argue and win this” if the issue arises with Trump trying to block a DOJ investigation, former White House attorney Neil Eggleston said this week. . Eggleston argued questions of privilege in court on behalf of the White House in the 1990s.

“It happens within days. It doesn’t take very long,” Eggleston added.

Eggleston described a balancing test judges must use in the wake of the Nixon decision, where the need for presidential secrecy is often not sufficient to overcome the needs of a federal grand jury investigation.

The Clinton investigation, led by then-special counsel Kenneth Starr, won a final ruling in favor of the Justice Department in less than five months after pursuing what the Clinton administration believed should be secret from his attorney’s office at the White House. And a separate criminal investigation into a Clinton cabinet minister where investigators searched for documents took about two years to reach a final decision.

In Trump’s National Archives v. House investigators case in recent months, the Supreme Court resolved the dispute in three months.

This story has been updated with additional details.

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