At issue are claims of executive privilege that prosecutors hope the former president will make in order to shield some information from a federal grand jury as the criminal probe deepens the ranks of White House officials who they interacted directly with Trump.
A judicial fight over executive privilege would immediately put the Justice Department’s investigation into a more aggressive posture than even Mueller’s — a major years-long criminal investigation into Trump while he was president. Ultimately he was not charged.
Addressing the privilege issue reflects the care with which the Justice Department approaches the unusual situation of investigating a former president for actions taken while in office. And it could cause one of the first big court fights over the separation of powers in the January 6 criminal investigation.
Pence’s former aides testify
Trump’s attempt to maintain secrecy emerged recently in the federal grand jury testimony of Marc Short and Greg Jacob, close aides to former Vice President Mike Pence.
Before their recent grand jury testimony, prosecutors, along with attorneys for Short and Jacob, outlined some questions they would avoid to avoid potential privilege issues, hoping they could return to those questions at a later date, the people briefed on the matter said.
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.
Short, Pence’s former chief of staff, and Jacob, his former chief adviser, were both present at an Oval Office meeting on January 4, 2021, where Trump pressed Pence to go from agreement with a plan presented by attorney John Eastman to block the certification of election results.
Despite questions of privilege, witnesses spent hours answering grand jury questions about the lobbying campaign on Pence, which Trump was part of, while avoiding direct questions about the former president, according to people briefed on the case. matter
Questions asked by prosecutors indicated that investigators are focusing on the role of Trump and others such as Eastman, Trump lawyer Rudy Giuliani and others in the larger scheme to block the certification of election results and to organize a pool of fake voters who would keep Trump. in office even though he lost the election, according to the informants.
Jacob and Short’s approach with the Justice Department so far is in line with what they did with the House select committee, one source said, avoiding answering some questions about what Trump said around Jan. 6 .
The extension of a former president’s executive privilege to protect a witness in a criminal investigation remains unsettled law, and Justice Department officials believe Trump is likely to try to enforce his claims as he has in the January 6 House select committee investigation.
It’s also clear, given the hurdles of privilege and communication with other witnesses, that prosecutors are still in the early stages of examining any direct role by Trump. Prosecutors appear to be much more advanced in their investigation of Trump allies who were orchestrating the scheme to keep him in office, the people briefed said.
Short is represented by Emmet Flood, a prominent Washington attorney who is known to be a staunch defender of presidential privilege.
An attorney for Flood and Jacob declined to comment for this story. A lawyer handling Trump’s privilege issues did not respond to CNN’s inquiries Thursday.
Courts have previously ruled against Trump’s efforts to protect his White House documents from being released to the House Select Committee.
The Biden administration has largely opted not to claim the privileges around Jan. 6, making Trump’s claims as a former president weaker than if he were still in office.
If another court fight related to the Jan. 6 grand jury proceedings investigating Trump materializes, officials overseeing the investigation believe the Justice Department has a strong chance of winning that fight.
Courts have generally found that claims of executive privilege are more easily disposed of in criminal investigations than in congressional probes.
Past efforts to pierce executive privilege
In 1974, the Supreme Court ruled to release the Watergate tapes, despite a claim of executive privilege, during the investigation of then-President Richard Nixon, a landmark ruling that hastened the end of Nixon’s presidency.
And during the Clinton administration, the federal appeals court in DC ruled against the administration’s privilege claims several times, and did so relatively quickly. At the time, the Supreme Court did not stop criminal investigators.
“I think it would be easy for the Justice Department to litigate and win this” if the issue arises with Trump trying to block a DOJ investigation, former White House counsel Neil Eggleston said this week. Eggleston argued privilege issues in court on behalf of the White House in the 1990s.
“This happens in days. This doesn’t take long,” Eggleston added.
Eggleston described a balancing test that justices must use after the Nixon sentencing, where the need for presidential secrecy is often not enough to outweigh 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 of seeking what the Clinton administration believed should be secret from the office of his White House lawyer. And a separate criminal investigation into a Clinton cabinet member in which investigators sought documents took about two years to reach a final decision.
In the Trump National Archives vs. House investigators case of the past few months, the Supreme Court resolved the dispute within three months.
This story has been updated with additional details.