Short, Jacob and Cipollone testified to the Jan. 6 select committee but negotiated strict terms to avoid discussing their direct interactions with Trump — a nod to the disputed possibility that such communications could be protected by executive privilege. But it’s unlikely that such claims would pass muster in a criminal probe.
“There is no way that any court would say they didn’t have to testify to conversations with President Trump in a grand jury investigation — a criminal investigation arising out of that conduct,” said Neil Eggleston, who served as White House counsel to President Barack Obama and represented President Bill Clinton in several executive privilege fights. “There’s no doubt if this got to a court, it would hold that the department is entitled to the information. … I think it’s a no-brainer.”
CNN reported last week that Short and Jacob declined to answer some questions before the grand jury on executive privilege grounds, as they had done during depositions conducted by the House Jan. 6 Select Committee. The panel has argued that executive privilege does not apply to nearly any conversation Trump had related to efforts to overturn the election, but the committee has opted against litigating those thorny and time-consuming issues, instead permitting cooperating witnesses — including Short, Jacob, Cipollone and others — to answer questions without revealing specific details of conversations with Trump that could even arguably be privileged. But Trump’s suit against the panel and the National Archives was an exception to the panel’s general approach of seeking to avoid or delay litigation on such issues.
It remains unclear whether Trump intends to formally assert executive privilege in a bid to block any testimony to the grand jury. A Trump spokesperson did not respond to requests for comments on the former president’s plans.
However, Trump is likely to be at a disadvantage in such a legal battle because of the defeats he already suffered as he tried to block the National Archives from disclosing thousands of pages of his White House records to the Jan. 6 select committee. That fight also helped the Justice Department hone arguments that may come into play in the grand jury probe encircling Trump’s allies.
The department represented the National Archives in that fight, lodging extensive briefs opposing Trump’s power to assert executive privilege as a former president over the objection of the sitting president, Joe Biden.
“The exceptional events of January 6 amply justify President Biden’s determination that assertion of the privilege is unwarranted with respect to the records at issue here,” Solicitor General Elizabeth Prelogar contended in a Supreme Court brief, “and [Trump] has not even attempted to offer ‘any specific countervailing need for confidentiality.’”
In short, the Justice Department’s grand jury investigation might benefit from Trump’s repeated efforts to block investigators in the past. Even before those court rulings, the department typically had the upper hand in battles over privilege. Grand jury subpoenas are more legally potent than the congressional variety, and the Justice Department will enter any fight with Trump armed with a court-approved strategy to defeat Trump’s executive privilege claims.
Judges at every level determined or acquiesced in rulings that the urgency of Congress’ need to investigate the Jan. 6 insurrection easily outweighed Trump’s desire to maintain the secrecy of potentially privileged records.
“Presidents are not kings, and Plaintiff is not President,” US District Court Judge Tanya Chutkan wrote in the first ruling against Trump last November. The DC Circuit Court of Appeals followed suit, with a 68-page opinion rejecting Trump’s effort to assert privilege on multiple bases.
“The January 6th Committee has … demonstrated a sound factual predicate for requesting these presidential documents specifically,” Judge Patricia Millett wrote for the three-member panel. “There is a direct linkage between the former President and the events of the day.”
The panel’s victory against Trump unlocked some of its most crucial evidence against the former president, including handwritten notes, call and visitor logs and speech drafts that showed the West Wing struggling to get Trump to condemn violent supporters on Jan. 6 and continue his efforts to overturn the election during and after the riot.
A separate legal fight—between Trump’s last chief of staff, Mark Meadows, and the Jan. 6 select committee—may also bear on Trump’s ability to insert executive privilege issues into the grand jury investigation. In that civil case, Meadows asserted immunity from congressional subpoenas, a power that the Justice Department has long supported for sitting presidents and their immediate advisers.
But the department had never weighed in on whether similar immunity applies to a former aide to a former president. In fact, the Justice Department’s only reference to any similar scenario was to directly cite a decision by President Harry Truman to resist a subpoena from the House UnAmerican Activities Committee after he had left office, citing separation-of-powers concerns. But Truman’s quote held no legal value, and the matter has never been litigated until now.
In a 17-page brief filed in Meadows’ case just over two weeks ago, the Justice Department for the first time said that a former aid to a former president did not have “absolute” immunity from compelled testimony, and that Biden’s decision to waive privilege should take precedence over any attempt by a former president to assert it.
“Allowing a former President to override the decisions of the incumbent would be an extraordinary intrusion into the latter’s ability to discharge his constitutional responsibilities,” the department argued.
Meadows’ lawyer George Terwilliger sharply criticized the Justice Department’s move, saying it “elected to become an advocate for the committee and urged the court to go into untested legal waters.”
Some executive privilege battles litigated in civil cases have dragged out for years. One, involving a House subpoena for Justice Department documents related to the Operation Fast and Furious gunrunning investigation, stretched for seven years, from 2012 to 2019.
However, the courts tend to fast-track grand jury subpoena battles because of the priority given to criminal investigations.
“The Department of Justice can get in front of a court really fast, unlike Congress,” said Eggleston, the former Obama White House counsel. “They can do that in a matter of days. They can work so much faster and they don’t really have to negotiate.”
Legal experts say the reported grand jury subpoenas to Cipollone and Philbin raise issues beyond the traditional executive privilege ones because they were, at times, giving Trump legal advice that would normally be protected by attorney-client privilege. However, in a 1998 dispute stemming from Independent Counsel Ken Starr’s probe of President Bill Clinton’s White House, the DC Circuit ruled that governmental attorney-client privilege had to yield to a grand jury subpoena in the context of a criminal investigation.
“The DC Circuit is very explicit that government attorneys do not have any greater privilege than other advisers when it comes to information they have that is relevant to a grand jury,” said Ryan Goodman, a New York University law professor and co-founder of the Just Security blog. “I think it’s highly likely that Trump will lose very quickly because … there’s case law in the DC Circuit contradicting any such claims.”
One former White House lawyer for Trump, Ty Cobb, said he thought some of the recent court rulings might have been mistaken to hold that a former president couldn’t assert executive privilege if the current one disagreed.
“I’m not sure that that is right,” said Cobb, who has publicly broken with Trump and called his actions related to Jan. 6 “disqualifying.”
However, Cobb acknowledged that either way, current law says criminal investigators can get even information protected by that privilege if they show “an urgent need” and “no other place to go” for it.
“If you tick those boxes, you can be questioned,” he said. The attorney noted, though, that some witnesses might choose to invoke their Fifth Amendment rights regardless of, or in addition to, any privilege Trump might assert, and the right against self-incrimination is largely treated as sacrosanct.
The initial stages of any executive privilege fight over grand jury testimony about Trump would go to Chief Judge Beryl Howell, an Obama appointee and former Senate Judiciary Committee counsel who has repeatedly voiced outrage about the Jan. 6 attack.
Beyond that, Trump’s lawyers can take the issue to the DC Circuit, which already snubbed him in the White House records fight, and on to the Supreme Court, which did the same.
The only outward sign of hesitation from the Justice Department on executive privilege issues is its decision last year not to bring criminal charges against Meadows and Trump’s social media guru, Dan Scavino, for defying House subpoenas based on what they said were instructions from Trump.
But the department’s recent backing for the House in Meadows’ civil suit seems to indicate that Justice Department officials are committed to their view that the stronger legal argument here is that, as a former president and because of the gravity of the Jan. 6 events, Trump cannot successfully assert the privilege to block testimony.
Indeed, some legal observers say Trump’s chances of succeeding in this sort of court battle are so remote that he might not even choose to fight it out. A privilege battle that attorney John Eastman pursued in court against a House subpoena led to a judge ruling in March that Trump likely committed a crime — obstruction of justice — by trying to interfere with the certification of electoral votes by Congress on Jan. 6, 2021 .
One potential downside for Trump if he does put up a privilege fight over the grand jury demands is a repeat of what happened in the Eastman case, with a judge or multiple judges publicly declaring that he probably broke criminal law. It would not amount to a criminal charge, but it would fuel public perceptions that Trump crossed the legal line in his activities by trying to overturn President Joe Biden’s win at the ballot box.
“There’s a potential risk for Trump that a judge holds there’s sufficient evidence of his engaging in criminal conduct,” said Goodman, the New York University law professor, a possibility that might dissuade Trump from embarking on a quixotic legal battle to shield his advisers from testifying about their conversations with him.