Category: ExecutivePrivilege

For DOJ to complete investigation into Jan. 6, it needs to destroy Trump’s privilege claims

Posted on by Mark Sumner

As Kerry Eleveld reported last Friday, Steve Bannon has been found guilty on two charges of contempt of Congress and can now expect to spend some time in federal prison for his refusal to cooperate with the House select committee on Jan. 6. However, Bannon is far from the only member of Donald Trump’s White House team who has failed to show up before the committee or provide requested documents. Most of those who have so far refused are likely to avoid paying any price for hiding information behind claims of “executive privilege.”

The Department of Justice may not be all that anxious to take up these contempt cases in the name of a House committee, but that doesn’t mean the department doesn’t want those Trump officials to testify. Those same figures are critical to the Department of Justice’s own investigation into the conspiracy behind events on Jan. 6, 2021. 

To clear the way for testimony from everyone up to and including Trump, the Department of Justice first has to clear the privilege issue off the board. Trump has made extensive use of the privilege card ever since entering the White House, and that certainly didn’t stop when he left. So far, the Justice Department has been careful to navigate around privilege issues in its interviews with former members of Team Trump, but for the investigation to get serious, that has to end.

As CNN reports, the Department of Justice is “confronting the privilege issue with care.” Attorney General Merrick Garland made a very welcome statement last week in which he finally made it clear that no one, including Trump, was clear of potential charges related to the attempted coup. But so far the department doesn’t seem to have pressed witnesses to provide what they consider to be privileged information, which in this case appears to be any direct communication with Trump. 

This is not how executive privilege is supposed to work. In past cases, claims of privilege have required just that: a claim from the White House asserting privilege over specific written or spoken communications. But throughout his time in Washington, Trump made extensive and expansive claims of privilege, not only refusing to cooperate in matters related to his two impeachments, but instructing officials to refuse to release even routine information. In almost all cases, White House officials refused to say that Trump was officially asserting privilege, and Trump refused to comment. There was just a broad claim of undefined privilege, which in some cases was extended to junior officials who never came close to talking with Trump. 

Such blanket claims of privilege leave the Department of Justice facing a dilemma when it comes to investigating the events of Jan. 6 and the other ways in which Trump attempted to overturn the results of the 2020 election. 

There’s no doubt now that the Department of Justice is deep into an investigation of actions by many members of the White House, including former Chief of Staff Mark Meadows, attorney John Eastman, and attorney Rudy Giuliani. In recent days, a federal grand jury has heard testimony from false electors who were encouraged to take part in Trump’s scheme, as well as Marc Short and Greg Jacob who were, respectively, chief of staff and lead counsel to Mike Pence. 

Trump’s efforts to extend privilege to new levels have already met with some defeats in court, most notably when he was forced to hand over a large tranche of documents that he had sought to protect at Mar-a-Lago and was required to release other documents held by the National Archives. But the broader case of exactly how much right Trump has to protect his conversations after he has left office remains unsettled law. 

There are good reasons to believe that the answer to how much privilege Trump now enjoys is none, and that practically every conversation that Trump had regarding Jan. 6, even those with his personal attorneys, would fail any reasonable test of privilege because these statements were directly related to a conspiracy to commit a serious crime. That would be completely in line with how courts ruled during Ken Starr’s prolonged investigation into the Clinton White House. 

But if the Department of Justice plans to cut through Trump’s privilege claims, it had better get cracking. A Department of Justice inquiry into a member of Clinton’s Cabinet took two years to obtain a final ruling. 

Adam Schiff’s perfect shutdown of Trump’s ‘executive privilege’ claims is mandatory viewing

Posted on by Walter Einenkel

Rep. Adam Schiff took time away from wiping the floor of the U.S. Senate with Donald Trump’s weak-sauce arguments, to go in front of cameras outside of the Senate to … wipe the floor with the president’s weak-sauce arguments. Speaking alongside the other House Impeachment managers, Rep. Schiff wanted to disabuse the Republican-media narrative that the reason there are zero witnesses being allowed into the Senate’s trial is because of some kind of legitimate claim on Trump’s behalf of executive privilege. Calling it a “camouflage” and explaining that the Chief Justice has already been empowered to make those determinations in the trial, Schiff very adeptly and succinctly debunks what will likely be a large part of the upcoming Trump defense.

REP. ADAM SCHIFF: I do want to address one issue that the president's team has been pushing out, not in the senate chamber but evidently everywhere else. And that is their last refuge. The last refuge of the Republican—not the Republican—of the president's team’s effort to conceal the evidence from the American people, and that is this claim of executive privilege. Now, we urged at the beginning of the trial that any witness issues be resolved at the beginning of the trial. The president's team wished to push that off, as did Senator McConnell, so that later in the process they could say, “well, if we were to entertain those questions now that would simply take too long.” That's nonsense. This is not a trial for a speeding ticket or shoplifting.

This is an impeachment trial involving the president of the United States. These witnesses have important firsthand testimony to offer. The House wishes to call them in the name of the American people and the American people overwhelmingly want to hear what they have to say. Now unlike in the House where the president could play rope-a-dope in the courts for years—that is not an option for the president's team here—and it gives no refuge to people who want to hide behind executive privilege to avoid the truth coming out. We have a very capable justice sitting in that Senate chamber empowered by the Senate rules to decide issues of evidence and privilege. And so if any of these witnesses have a colorful claim that they wish to make, or the president on their behalf, we have a justice who is able to make those determinations, and we trust that the chief justice can do so.

The Senate will always have the opportunity to overrule the justice, but what they fear, what the president’s team fears, is that the justice will, in fact, apply executive privilege to that very narrow category where it may apply. And here that category may be nowhere at all. Because you cannot use executive privilege to hide wrongdoing or criminality or impeachable misconduct. And that is exactly the purpose for which they seek to use it.

And finally, they have withheld hundreds and hundreds and hundreds of documents for which there is no colorable claim of privilege. Several of the witnesses that we seek to call have no even colorable claim of privilege. This is merely the latest camouflage and merely the latest effort to obstruct the Congress in its investigation and now to obstruct the Senate in the trial.

That’s a fact. Rep. Schiff continues to just land devastating body blow after body blow.

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