Lawsuits by Trump lawyers mark a turning point

Written by Javed Iqbal

The Justice Department’s grand jury subpoenas for former White House counsel Pat Cipollone and others in former President Trump’s inner circle mark a turning point in the federal law enforcement investigation into the former president.

The grand jury investigation has significantly more power than the House select committee on Jan. 6 to pierce any claim of executive privilege the former president might raise — an issue that has come up with Cipollone.

When Cipollone agreed to testify before the panel on Jan. 6, he declined to answer certain questions about his conversations with Trump, citing attorney-client and executive privilege.

Experts say those claims of privilege would be unlikely to hold up in court if Trump or Cipollone tried to use them to withhold information from a grand jury.

“The Justice Department grand jury subpoena is a much more powerful tool than a congressional subpoena,” said Neil Eggleston, who served as White House counsel for the Obama administration and represented former President Clinton in a dispute over another White House counsel House. jury testimony.

“In my opinion, it would be inconceivable that the Justice Department would not win,” Eggleston added.

Cipollone’s insights into Jan. 6 are likely to be of great interest to prosecutors following his emergence as a key figure in the congressional investigation.

The select committee has presented evidence that the former top White House counsel expressed concern about Trump’s behavior in the weeks leading up to the January 6, 2021 attack on the Capitol.

Cassidy Hutchinson, a Trump White House aide, testified in June that Cipollone issued stark warnings in the days leading up to Jan. 6, when it became clear that Trump wanted to lead his supporters in a march to the Capitol to protest Congressional certification of his election loss to President Biden.

“Please make sure we don’t go up to the Capitol, Cassidy,” Cipollone told Hutchinson, according to her testimony. “We will be charged with every crime imaginable if we make that move happen.”

While select lawmakers had little recourse when Cipollone and others declined to answer questions about their conversations with Trump, legal experts say federal prosecutors have more tools at their disposal and that any claim of executive privilege in a grand jury context would face an uphill battle in the courts.

ABC News reported Tuesday that a federal grand jury had subpoenaed Cipollone, making him the highest-ranking Trump White House official targeted in the DOJ’s escalating investigation on Jan. 6.

The select committee has fought to enforce its investigative demands through the courts in more than a dozen civil lawsuits over the past year. Although the panel has had some success, cases can drag on for months.

In cases where a target of a congressional subpoena refuses to comply, the House also has the option of issuing a criminal contempt referral to the Justice Department for prosecution, which is what lawmakers did with four of Trump’s close allies.

But prosecutors ended up charging only two of them — Steve Bannon and former White House trade adviser Peter Navarro — with criminal contempt of Congress, and neither appears any closer to cooperating with the committee. A jury convicted Bannon last month of two misdemeanor contempt charges, each of which carries a possible sentence of between 30 days and a year in jail.

The Justice Department declined to file charges against two other Trump aides held in contempt, social media guru Dan Scavino and former White House chief of staff Mark Meadows.

Meadows filed a civil suit against the committee late last year, challenging its subpoena and claiming to be protected by the testimony immunity of White House advisers. The case has been tied up in court for eight months, and it is unclear when it may be resolved.

While the Supreme Court has said former presidents have some authority to assert executive privilege, some legal scholars say such a claim would have little chance of protecting information sought in a criminal investigation.

Jonathan David Shaub, a law professor at the University of Kentucky and a former attorney at the Justice Department’s Office of Legal Counsel, said he believes any claim of privilege by Trump or Cipollone before the grand jury would be “frivolous” and federal prosecutors would be able to move quickly to force compliance.

The Department of Justice (DOJ) “has a much more efficient and expeditious enforcement mechanism to go to district court and have these claims of privilege adjudicated and almost certainly dismissed,” Shaub said.

“My guess is given how flimsy his claim of privilege is, that we’re not going to hear much else, that he’s going to go into negotiations and ultimately get the best he can from the DOJ and then comply because he doesn’t has a lot of a leg to stand on,” he added.

When courts evaluate claims of privilege against subpoenas, the biggest question judges seek to answer is whether the need for the information is compelling enough to outweigh the need for executive branch confidentiality.

In 1974, the Supreme Court unanimously joined the Watergate special indictment when then-President Nixon tried to quash a grand jury subpoena for White House tapes.

Supreme Court Justice Warren Burger wrote in the decision: “The generalized claim of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

In a more recent case, the Supreme Court rejected Trump’s bid to block the select committee from obtaining documents from his time in the White House. In an 8-1 ruling in January, the justices declined to review a lower court’s ruling that the select committee’s need for the documents would outweigh any claim of privilege, even though Trump had still been in office at the time.

Eggleston said he believes the courts would rule the same way if a dispute over privilege were to arise out of the grand jury investigation.

“I think that’s probably the way the courts will think as well,” he said. “Because if you just apply a standard balancing test under US v. Nixon, I think it’s overwhelming that the Justice Department would have shown a compelling need for this testimony and President Trump’s interest in confidentiality at this stage, especially after the Jan. 6 hearings , is essentially zero.”

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Javed Iqbal

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