Topline
Former President Donald Trump is asking a court to let him shield information from the Justice Department as it investigates the January 6 attack on the Capitol building and Trump’s efforts to overturn the 2020 election, CNN reports, which could have a significant impact on how much information the DOJ gets on the ex-president as it calls more aides to testify.
Former President Donald Trump at the Covelli Center in Youngstown, Ohio on September 17.
Key Facts
Trump is asking a court to let him shield some information from the grand jury that’s been convened as part of the DOJ’s investigation, arguing it’s covered under attorney-client privilege or executive privilege, CNN reports, citing sources briefed on the legal battle.
Trump’s attorneys appeared in federal court Thursday afternoon as part of the privilege dispute, CNN reports, but under grand jury secrecy rules, everything about the case is under seal and has not been made public.
The ex-president’s privilege claims have already affected some of the people who have testified in the probe, with CNN reporting former White House counsel Pat Cipollone, deputy counsel Patrick Philbin, former Vice President Mike Pence’s chief of staff, Marc Short, and Pence attorney Greg Jacob all declined to answer some questions as a result.
The dispute has also delayed the testimony of Trump Administration attorney Eric Herschmann, CNN reports, who has criticized the Trump team’s guidance over what he wasn’t allowed to tell investigators as confusingly vague and potentially putting him at risk of being held in contempt if he didn’t answer questions.
Other Trump aides have similarly had frustrations that Trump’s privilege claims aren’t specific enough and make it hard for them to know what they can tell investigators, CNN reports.
The Justice Department declined to comment to Forbes, and Trump’s office has not yet responded to a request for comment.
What To Watch For
Whether or not Trump’s privilege claims will be successful. If they fail, CNN notes, it would be a boon for the DOJ, which could now get testimony about conversations with Trump from his closest aides and other closely held information that would shed light on his post-election activities. Some attempts to shield communications with Trump through attorney-client privilege have already separately failed in court, as Trump attorney John Eastman was ordered to turn over emails to the House January 6 Committee. A federal judge ruled that while some emails were privileged, others were not—including because of an exception that allows otherwise privileged materials to be disclosed because the “communications are ‘sufficiently related to’ and were made ‘in furtherance of’” a crime. CNN notes it’s still unclear whether Trump will be able to shield documents under executive privilege, as courts don’t have clear precedent on when exactly that is and is not allowed.
Key Background
The Justice Department is conducting a wide-ranging criminal investigation into January 6 and the aftermath of the 2020 election, which has already resulted in nearly 900 participants in the Capitol riot being charged and more recently expanded to look more closely into Trump and his allies’ post-election activities. The probe is reportedly examining the “fake electors” scheme that saw GOP officials submit false slates of electors to Congress, claiming that Trump won in battleground states, along with ex-DOJ official Jeffrey Clark’s effort to stop Georgia from certifying President Joe Biden’s win by falsely claiming the DOJ had found evidence of fraud. Multiple reports suggest the probe has become increasingly focused on Trump in recent months, with witnesses asked about their conversations with the ex-president and investigators looking into Trump’s Save America PAC. Investigators are also reportedly stepping up their efforts to get more witnesses to testify in the probe, with the New York Times reporting in mid-September the DOJ had issued 40 subpoenas within the span of a week and seized the phones of Trump attorney Boris Epshteyn and Trump campaign strategist Mike Roman. Ex-Trump officials who have been reportedly subpoenaed in the probe include former White House chief of staff Mark Meadows and former Trump social media director Dan Scavino, among others.
Tangent
Trump is separately trying to have documents shielded from the Justice Department as part of its investigation into documents that were being kept at Mar-A-Lago in Florida. The ex-president has gone to court to ask a third-party special master to filter out documents the DOJ seized at Mar-A-Lago that are covered by attorney-client or executive privilege, and after a judge ruled in his favor, U.S. District Judge Raymond Dearie is now beginning that review, which will wrap up by November 30. A federal appeals court has allowed the DOJ to hang on to classified materials it seized at Mar-A-Lago and not turn those over to the special master, however, which means Trump can’t stop them from being used in the agency’s investigation.
Further Reading
Justice Dept. Issues 40 Subpoenas in a Week, Expanding Its Jan. 6 Inquiry (New York Times)
Trump’s Team of Lawyers Marked by Infighting and Possible Legal Troubles of Its Own (New York Times)
Trump’s Save America PAC Under Investigation In January 6 Probe (Forbes)
Trump Lawyer Herschmann Subpoenaed In DOJ’s Jan. 6 Probe — Here’s Who Else Has Been Asked To Testify (Forbes)