Trump’s Shaky Privilege to Hide His Pence Pressure

CNN, NYT, and WaPo have now reported on why Evan Corcoran, John Rowley, and Tim Parlatore were at Prettyman Courthouse on Thursday afternoon. They were trying to support Trump’s invocation of Executive Privilege to limit testimony about his own actions and words.

CNN first confirmed the reason.

Former President Donald Trump’s attorneys are fighting a secret court battle to block a federal grand jury from gathering information from an expanding circle of close Trump aides about his efforts to overturn the 2020 election, people briefed on the matter told CNN.

The high-stakes legal dispute – which included the appearance of three attorneys representing Trump at the Washington, DC, federal courthouse on Thursday afternoon – is the most aggressive step taken by the former President to assert executive and attorney-client privileges in order to prevent some witnesses from sharing information in the criminal investigation events surrounding January 6, 2021.

The court fight over privilege, which has not been previously reported and is under seal, is a turning point for Trump’s post-presidency legal woes.

WaPo suggests this is primarily and NYT reports it is at least in part about getting Marc Short and Greg Jacob’s testimony.

One person familiar with the matter said that the dispute concerned the testimony of two top aides to former vice president Mike Pence — his former chief of staff, Marc Short, and former counsel, Greg Jacob. The men appeared before the grand jury in July and answered some, but not all, questions, based on Trump’s assertion of privilege, people familiar with the matter said.

But for the five people known to be involved — Short and Jacob, plus former White House Counsels Pat Cipollone, Patrick Philbin, and Eric Herschmann — the privilege claims would be closely related. Short and Jacob have refused to disclose conversations they witnessed between Trump and Mike Pence. The Two Pats and (to a lesser extent) Herschmann have refused to tell what they said to or witnessed Trump say directly.

Based on their January 6 Committee testimony, we know some very specific details about what the men have hid via privilege claims:

  • Greg Jacob declined to describe precisely how, in an in-person meeting on January 4 including John Eastman, Pence rejected Trump’s pressure to refuse to certify the vote certification
  • Pence’s aides had stepped out of the room when Pence spoke to Trump by phone on the morning of January 6; numerous people witnessed (and told the Committee) about the Trump side of it, but no one is known to have shared Pence’s side of it
  • Cipollone refused to describe how he or the other White House Counsels advised Trump to make a statement asking the rioters to leave the Capitol
  • None of the White House Counsels described precisely what they said to Trump about his Tweet focusing on Pence
  • Cipollone wouldn’t describe the conversations he had with Trump about rioters chanting “hang Mike Pence”
  • Cipollone refused to say that Trump was among the people at the White House who didn’t want rioters to leave the Capitol

There are surely other conversations of interest. If Cipollone shared directly with Trump some version of his advice that, as Cassidy Hutchinson described, if Trump went to the Capitol, “We’re going to get charged with every crime imaginable if we make that movement happen,” including obstruction of the vote certification and incitement, it would be crucial evidence in any obstruction charge against Trump. I’m hoping, too, that the White House Counsels get asked about Trump’s offers of pardons to those who participated in his coup attempt.

Parlatore’s involvement in the Prettyman event may reflect more junior staffers who invoked privilege too.

The three outlets vary about how clearly they describe something that is obvious: If DOJ is moving to overcome privilege claims invoked to protect what specific advice Trump got about the legality or illegality of his actions leading up to and on January 6, they’re doing so with an eye towards charging Trump, not because they want to see whether Pat Cipollone was sufficiently alarmed about the implications of an attack on the Capitol. And just WaPo notes that this privilege claim — in the context of a criminal investigation and made within the Executive Branch, rather than (as with the January 6 Committee) between two branches of government — should be an easier question for SCOTUS than the decision authorizing the Archives to share Trump’s communications with the Committee.

Three more dynamics deserve mention. First, Marc Short, the one non-counsel known to be affected by this privilege fight, is represented by Emmet Flood, perhaps the lawyer who has best protected the prerogatives of the Presidency ever since he helped Bill Clinton avoid conviction with impeachment and helped George W Bush (and Dick Cheney) close out their Administration without bigger legal consequences. Flood may not even care about Trump at this point, but he cares about protecting the Presidency.

But the shenanigans Trump engaged in — instructing witnesses to invoke Executive Privilege without formally invoking it — may shift the posture of any dispute. DOJ was always going to come back and push for more testimony. But after much haranguing, Herschmann seems to have forced Trump to do what he had not before: put something in writing. That may either force Trump to go back and do so for the others, or may allow DOJ to get a privilege waiver for Herschmann that would implicate the others. That’s important because Herschmann might not wait around for any appeals of privilege waivers. All this is largely happening behind closed doors, but it may matter that at the end of this process, Herschmann forced Trump’s hand and that may give DOJ something more tangible to challenge before Chief Judge Beryl Howell. I sort of suspect that may have been the point.

Finally, if and when DOJ wins this fight (it should not be a close contest, and won’t be at least for Howell), it gets DOJ one step closer to considering whether they need Pence himself to testify.

DOJ is making an effort to get what — we know from public privilege invocations — includes a lot of damning evidence against Trump involving Pence. And has been clear since at least January, Trump’s pressure on Pence and his efforts to get the mob to pressure Pence tie the coup attempt and the attack on the Capitol together.

139 replies
  1. Peterr says:

    After reading all this, a big question leaped out to me: Has the “crime fraud exception” ever been used to overcome an invocation of Executive Privilege? I don’t remember that coming into all the Watergate battles, but that’s something I’d love to have Jill Wine-Banks or one of the other veterans of Watergate legal battles confirm/correct.

    With the batch of subpoenas issued recently to WH folks, and all these lawyers coming to Prettyman for this fight, something tells me that the DOJ is moving to escalate things, and may be ready to use the CFE to beat down Trump’s EP claims, saying something like “We have strong grand jury testimony that crimes were committed, and that those closest to the President have additional evidence and testimony relevant to those crimes. No president can be allowed to invoke Executive Privilege to prevent testimony into criminal behavior.”

    • Rollo T says:

      Related question: What would be the mechanism of examining the AC privileged documents taken from Mar a Lago for CFE?

    • emptywheel says:

      I think it doesn’t get treated that way. Rather (see also Clinton) the Q is whether the Exec Branch has need of the testimony, and in case of a criminal investigation, that’s a heightened need.

    • Rayne says:

      We came close to with United States v. Nixon (1974) but the justices worked it out just shy of visiting the crime-fraud exception, finding the executive privilege was not unlimited in favor of the fair administration of justice.

      Based on Nixon’s responses to Dick David Frost’s 1977 interview question, one could envision SCOTUS being forced to address the exception had Nixon been able to remain in office:

      Frost: So, what in a sense you’re saying is that there are certain situations and the Huston plan or that part of it was one of them where the president can decide that it’s in the best interest of the nation or something and do something illegal.

      Nixon: Well, when the president does it … that means that it is not illegal.

      Frost: By definition –

      Nixon: Exactly … exactly… if the president … if, for example, the president approves something … approves an action, ah … because of the national security or in this case because of a threat to internal peace and order of, ah … ah … significant magnitude … then … the president’s decision in that instance is one, ah … that enables those who carry it out to carry it out without violating a law. Otherwise they’re in an impossible position.

      Yeesh. We may yet see Trump try this same defense.

      • Rugger9 says:

        Oh, he will. It’s not just because of the mulishness but I think some serious self preservation is involved. As I was walking around with my Fierce Creature this morning, it struck me that there are four classes of politicos:
        1. Ones that are universally loved, and you’d do anything for them to help them out.
        2. Ones who can help you out, so you help them out as a quid pro quo.
        3. Ones who can hurt you, so you help them out as a different quid pro quo (or buy them off).
        4. Ones you don’t like and can’t hurt you, who are routinely ignored.

        Individual-1 right now is in Class 3 after leaving office (which put in Class 2), especially when considering that his PACs aren’t helping the GQP candidates all that much. I think if the privilege is pierced he goes into Class 4 and then we have to deal with the successors (i.e. DeSantis). In addition to the CFE noted by others, let’s also remember that TFG has an unfortunate (for him) habit of shooting his mouth off which I would expect will make it much harder for his lawyers to claim privilege if TFG already put the conversation into the public sphere.

        • Rayne says:

          LOL Back in 1977 — I was in high school at the time — I did think Frost was a dick for giving Nixon a platform. Frost made a lot of money off the interview which contained some inflammatory material like that I’ve excerpted.

          I’m still torn about it; in hindsight there’s benefit to knowing it’s good Nixon was shown the exit as he was, when he was, but I still wonder if Frost set a bad example in how he handled this.

      • Ravenclaw says:

        “Internal peace and order would be threatened if my schemes were made public. We would see violence in the streets between those loyal to me and the evil Antifa hordes. Therefore, it is legal for you oh-my-minions to do anything and everything needful to keep them concealed.” Something like that?

      • Leu says:

        Hasn’t Trump said on more than 1 occasion that when the president does it it isn’t illegal, or words to that effect?

  2. pH unbalanced says:

    small edit in 3rd to last paragraph: “DOJ was always come back and push for more testimony.” probably missing a “going to”

  3. Billy says:

    The odds are that the DOJ will do as it always does –

    Hide behind the fig leaf DOJ policy of never commenting on a matter under investigation.
    Delaying any public release of information ( remember these court filings are being very closely held)
    And in the end after many delays quietly bury the whole affair.

    [FOURTH AND FINAL REQUEST: Please use a more differentiated username. This site already has several community members named “Bob,” “Rob,” or “Robert” and now “Billy,” “Bill,” “Will,” or William” as explained in your third comment. Sockpuppeting is not acceptable here and will not solve the differentiated name problem. Pick a unique name with a minimum of 8 letters to participate in comments here. /~Rayne]

      • Peterr says:

        I agree.

        If this does get shut down, so will a non-trivial portion of the cooperation our intelligence agencies have with their counterpart agencies among our allies. They are *not* going to want to share there biggest secrets with us, if we refuse to learn what happened here.

        The CIA, NSA, etc. will go to the wall with folks in congress to keep that from happening.

        • earlofhuntingdon says:

          EW and others here have raised this issue before, but MAL is Not a documents case – much to the surprise of many TV lawyers, who keep mouthing that it is, and want the president indicted on something more spectacular and easy for the public to take in.

          As your own posts have pointed out, it’s about a massive breach in our national security, whether or not Trump actually sold or used his document trove to extort or raise money.

    • earlofhuntingdon says:

      The “fig leaf” of not disclosing information about ongoing investigations, pre-indictment?

      You would want a fig leaf the size of a bear rug, if you thought you were under investigation for something you did not do, about which the feds finally agreed with you.

      Depending on the alleged crime (stealing nuke secrets, for example), absent that fig leaf, your credit; your family life, friendships, and social network; and your job and job prospects might go, Poof.

      • Sandwichman says:

        I think you are misinterpreting the “fig leaf” accusation. “Billy” was not saying the DOJ policy itself was a fig leaf but that it is currently being used to conceal the supposed fact that actually nothing leading toward an indictment is being done. I am not saying I agree with that view but it is impossible to disprove until and unless an indictment comes out at the end.

        • earlofhuntingdon says:

          Billy might have been saying both things. But disproving a cynical, unsupported supposition is not my job, proving it is his.

  4. Thomas says:

    I’ve been wondering about the crime fraud exception for executive privilege myself.

    Trump was not acting within the parameters of his authority as president if he was committing crimes or attempting to commit crimes. [Nixon cases?]

    Herschmann’s written invocation is really just written proof of crimes.

    Question: Were Cipollone and Philbin acting as lawyers when they concealed the president’s crimes? Were they acting as confidential executive advisors?
    Either way, they can be prosecuted themselves if they are obstructing an investigation.

    They can’t make Trump’s crimes legal by committing more crimes with him to cover the other crimes up!

    That only works if they control the executive branch and can’t be impeached and removed.

    • timbo says:

      It also works if the governmental system itself is become too over-burdened by ineffective policy. That policy can be official or un-official. In generally, unofficial policy is carried forward, given ‘legitimacy’ by those who, close to the levers of power, cannot bring themselves to enforce stronger anti-corruption and/or other stabilizing policies.

      The whole idea of ‘executive privilege’ arises from some idealized notion of how an effective Executive branch might work…but leaves a gaping hole into which any number of crimes by the nation’s primary political leader and their coterie can run roughshod over so many others of the US’s institutions that, in parallel with the odd notion that a sitting US President is somehow above the law, there is a considerable weakening of oversight of the Executive branch itself. That’s a unique situation to the US, the first country to theoretically get rid of the notion that somehow an Executive leader was king for a period of time. Now US President’s are more like ‘Constitutional’ monarchs pretty much during their term in office. Is it a surprise that folks like Trump, those around him too, might not want to extend that sort of power well beyond the legal terms of office? Thus the danger of the concept of a “Unitary Executive” is becoming a more dangerous reality… (I’m not arguing here that some of the Framers weren’t proponents of a ‘Unitary Executive’, just saying that the proposition itself, when implemented, is not looking as helpful as some of them might have envisioned to stability of the Federal Republic.)

      I should also hasten to add that all of the contretemps of late, the most recent crises domestically, are being promoted by the Article III branch, its rulings having pretty much hamstrung the positive effectiveness of the Article I branch, specifically when it comes to elections, and specifically when it comes to the equality of individuals in our society who don’t happen to enjoy the luxury that the concept of money being free speech shuts down and out of the legislative process.

      There are corrective things that can be done at this point in the story of our nation under Constitutional institutions. However, doing them within an increasingly over-burdened institutional morass is becoming progressively more and more difficult. For instance, as E. Warren et al have outlined over the past two decades, we need to start breaking up the virtual cartels that are created by the accumulation of wealth and the activation of that wealth to prevent the government from helping balance the needs of the vast majority of the the folks in the US with the self-aggrandizing whims of the few. There is also the most recent evidence of individual liberty and rights being reinterpreted by those who have wealth, at the whim of Christian fundamentalist beliefs, under a growing cloud of obfuscated amorality in politics, imprimed by impersonal faith projection.

      We are so blessed?

      • FL Resister says:

        “There are corrective things that can be done at this point in the story of our nation under Constitutional institutions. However, doing them within an increasingly over-burdened institutional morass is becoming progressively more and more difficult.
        For instance, as E. Warren et al have outlined over the past two decades, we need to start breaking up the virtual cartels that are created by the accumulation of wealth and the activation of that wealth to prevent the government from helping balance the needs of the vast majority of the the folks in the US with the self-aggrandizing whims of the few.” — timbo

        This sums up that issue nicely. However we also have the overlords’ propagandists to address.
        The US has become a country that needs people who know better to apply their balancing skills and right a tipped over state. The fools being US believing we were beyond fault.

        The dubious integrity of The US Supreme Court due primarily to Mitch McConnell’s malfeasance is evidence enough that we’re in an obvious imbalance between will of the people and this new christofascist state the right wingers are assembling. On an encouraging note, Bannon is definitely going to jail and the Sandy Hook victims are in the process of disassembling the shock jock who made millions harassing them.

        Elizabeth Warren is the lead on the issue of majority rights. And to me it is misogyny and female stereotyping that holds her back. Given that, who is the EW acolyte a generation that will be a more palatable alternative? Inaction is not an option for people who know better.
        These are the things I look forward to.
        (This will piss off the die-hard Bernie supporters but at this point his most effective place is in a meme.)

  5. Klaatu Something says:

    The next Trump won’t be this dumb, nor will he have a Pence to thwart his ambition.

    I don’t know whether I need more or less caffeine.

    “I don’t like Mondays”

  6. Mister Sterling says:

    Trump’s unpaid legal team has to be stretched thin, right? They are filing motions in what, 3 different states plus DC at this point? I see a lot of lost sleep and a ticking time bomb of resignations come Christmas.

  7. J J Hayden says:

    With respect to executive privilege – the argument is that it is really imperial privilege that came with his coronation and last for his life.

  8. Fent says:

    I know I will catch hell from Rayne or bmaz because I cannot remember what name I used the last time I posted, which was quite a long time ago. Please forgive me! Mea maxima culpa!

    But one question I have is driven by overwhelming curiosity: what is MW’s legal background?
    I have read this blog for years and I am a semi-retired lawyer who considers himself experienced and well-trained. But I have always been amazed at MW’s incredible grasp of and insight into legal issues, trial strategies, etc., all of which makes her commentary so engrossing.

    Yet her Wiki entry makes no mention of any formal or other legal training. Did she become such a maven just by osmosis? What accounts for such skillful analysis that puts highly trained lawyers to shame?

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you commented last as “Jim.” We’re moving to a minimum 8-letter username standard. Please choose a longer name which is unique and memorable to you. Thanks. /~Rayne]

    • matt fischer says:

      I suggest you simply look at the About page to find out a little more about the “legendary potty mouth” who has been likened to “a human Westlaw.”

      She wrote more about her background and approach to legal cases in this post from last year.

    • earlofhuntingdon says:

      Marcy has a PhD in comparative lit. from Ann Arbor, not a law degree. But she is a legal journalist, not a practicing lawyer. Her work requires analytical, research, and writing skills, and the ability to set the legal issues in an effective context. At that, Marcy is superb. Over more than fifteen years, she has also acquired formidable knowledge about the areas of law she covers.

      Marcy’s legal journalism is at or above the level of the best mainstream media legal analysts and commentators, many of whom do have law degrees. There are other highly respected legal journalists without formal legal qualifications. Benjamin Wittes, for example, has an undergraduate degree from Oberlin. And yet, he is a senior fellow at the Brookings Institution, and co-director of a Harvard Law School program on law and security. On the other hand, the people Donald Trump hires do have formal legal qualifications. Pick your poison.

      • earlofhuntingdon says:

        I would add that Marcy is particularly good at connecting the dots, at describing a chain link-by-link, until the whole becomes clear and connected. It can also seem like stepping back from a pointillist painting: at some point, the dots become the banks of the Seine.

        Mainstream journalists tend not to do that, which reduces the value of their work. They seem to prefer broader brushstrokes, the isolated snapshot, the sourced comment of the moment. Whether that’s because they underestimate their readers, want to protect their insider status, or have to bend to corporate owners and editorial demands, is open to debate.

        • earthworm says:

          yes, mainstream journalists make a lot of the news and events they report on seem like they “just happened.”
          there’s a back story and context to everything.
          readers here at emptywheel get that, and a whole lot more.
          thank you all.

    • emptywheel says:

      As EOH said, I have a PhD in complit (so the same kind of training in close reading, but across genres and languages). I also worked in document-related jobs in business for 5-10 years.

      It’s true I’ve covered these legal cases for 18 years, so particularly on topics like 793 I’ve got very particularized expertise.

      But I still rely on the tools literally analysis to understand how lawyers are telling a story, where they are omniscient narrators, where they’re just faking it, and where their narrative climax is going to show up.

      Add that to understanding the bureaucratic effect documents have have and I think I’m reasonably good at seeing when something has been put in motion by something which may lead me to try to work back to what that was. Some describe that as seeing negative space.

  9. HorsewomaninPA says:

    IaNaL, I am a mere citizen who bristles every time I hear the phrase “executive privilege”. My very slim knowledge of the why behind it comes from Neil Eggleston at Harvard:
    “You want advisers to feel free to explore a range of options, including options that might be unpopular, and to have a free flow of conversation with the president in order to develop the best possible options.”
    I wish someone would explain the following to me (because it makes no sense to me if we live in a democratic republic not a monarchy), how it serves our country that a former president and former advisors can refuse to explain what was said between two people when a) they are not exploring unpopular options, one party is trying to tell the other party that what they want to do is illegal and b) why a POTUS needs so many lawyers. As a non-lawyer, all these assertions of executive privilege appears to be nothing more than people trying to cover up bad behavior / illegal behavior by the former president or others involved. How does that prevent “free flow of conversation with the president in order to develop the best possible options” when a) the guy is no longer in office and b) it is apparent that in most cases, he ignored what they were saying, so what they are holding back did not result in “best possible options”.
    Also, according to Eggleston, executive privilege wasn’t really a thing until Nixon (who was, in my opinion, the crookedest president until Trump).

    • Doctor My Eyes says:

      Until a truly informed person comes along and gives the real answer, I will remark that I think you are glossing over a valid aspect of executive privilege. If the executive faces an important decision, and an advisor gets caught up in the moment and offers really stupid advice to do an illegal thing, executive privilege says that person should not face repercussions 2 years later. This should be true whether or not her advice was followed and whether or not the executive being advised was as noble as Lancelot or as depraved as Uriah Heep. To my way of thinking, there is a modicum of legitimacy to this.

      Otoh, I’ve been thinking a lot lately about how much effort, and obviously so, Trump is exerting to keep things from getting out, being known, and especially testified to in a court of law. He once said that taking the fifth indicates guilt. Well, taking a step back, a good half of Trump’s actions in recent weeks scream guilt, awareness of guilt, and obstruction. I want to ask his defenders, if he’s so wonderful and actually represents the will of the people, why the hell is it so important that much of his behavior be kept secret? Didn’t he claim to have taken the papers in order to inform the public? He seems hellbent on keeping the public from knowing.

      • earlofhuntingdon says:

        An adviser arguing that a president can and should do an illegal act – something Henry Kissinger claimed was an affirmative obligation – is not something that should be protected by executive privilege. That’s just a get-out-of-jail-free card.

        But the issue here is more subtle. Executive privilege typically protects the executive branch from disclosure of its deliberations to competing branches of government, and ultimately, the people. Here, the executive branch would be arguing about whether it can use it itself – to perform one of its core functions: criminal investigation and law enforcement. (Note, that Dearie specifically asked Trump to identify documents whose disclosure within the executive branch his theory of EP would prevent.)

      • Elvishasleftthebuilding says:

        Any executive officer worth his salt would rely on or defer to attorneys. If the President’s attorneys conclude that an action that is ultimately deemed to be illegal is legal, that at least provides a solid defense for the President and any executive officer. If executive officers are so sloppy and impetuous that they are not considering legality or illegality, then those decisions should not be subject to “executive privilege”.

        And in any event, Biden is the current holder of executive privilege – assuming that there is a procedural reason to assert it, then I assume he would – to guard deliberations. In the case of January 6, he has chosen not to assert executive privilege to protect any such deliberations (“do you think they might hang him? that would be cool”). So no executive privilege exists.

        I am not sure that it would be a practical solution for the White House simply to file a brief with the court disclaiming any assertion of Executive Privilege in these cases.

        Is there anything that would prevent any of these fellows simply saying that they don’t believe executive privilege applies and testifying? Would the result be that their testimony, absent a decision on this issue, could not be considered by a judge or jury deciding a case?

        • rip says:

          Your question “Is there anything that would prevent any of these fellows simply saying that they don’t believe executive privilege applies and testifying?” is what I have been wondering.

          Let’s say Cipollone decided to spill his guts even tho that former guy had declared EP over their communications – what would be the consequences?

          Obviously if Cipollone revealed things in a public forum that were marked by the government as controlled, that would be prosecutable by the current government, not by the former guy’s.

          Do we really expect trump/etc. to sue in federal court violations to their sense of privacy and privilege? Wouldn’t that also mean a huge amount of potential discovery?

        • matt fischer says:

          There is no law governing Executive Privilege or that prevents a witness from testifying about advice given to a POTUS, regardless of whether said POTUS (or FPOTUS) has asserted EP.

          The “You want advisers to feel free to explore a range of options” argument for EP is largely about protecting advisers from potential reprisals for their advice. If advisers decide to forsake such protection to provide testimony, there is no legislation to stop them.

          Thus, legally speaking, it’s my understanding that any witnesses who choose to ignore Trump’s invocation of EP would be free to do so (barring an injunction). That said, there are other repercussions potential witnesses would surely consider, including the palpable inevitability of MAGA wrath.

          (Much of this morass could have been avoided had the Supreme Court, in Nixon v. Administrator of General Services, not recognized the dubious authority of a former president to assert EP.)

        • timbo says:

          AFAIK, there is no federal code that provides a criminal penalty for just testifying truthfully if that is what one wants to do…mostly. Regrettably, even this is complicated since there are also the possibility of national secrets (NDI) possibly being divulged if one does testify truthfully in certain cases. What Executive Privilege ultimately will end up looking like, if it is sustained as a judicial convenience, will be codified into law, much as the national security culture, reinforced now by laws governing control of secrets, has arisen over time.

    • matt fischer says:

      There is little chance that the Executive Privilege invocations will ultimately block the testimony DOJ is seeking. And, as Neil Eggleston opined regarding Patsy Baloney’s testimony in front of the J6 Committee, there are good reasons why EP should not hold up there either.

      But EP has been around for centuries in one guise or another, and it is considered a valid privilege of the POTUS. Once invoked, even by a FPOTUS, it cannot be summarily dismissed. That makes it a very effective delay tactic. And with Trump, delay is the name of the game.

    • Bittersweet says:

      Okay, I am really confused. Now is the time for me to ask one of our esteemed lawyers. Is there a place where “Executive Privilege” is spelled out? Is is constitutional, law or policy? Where is it written down on paper and what does it say?

        • nedu says:

          I agree that the WEX resource is a good starting summary.

          But, there’s a trade-off to be considered when describing the less-liquidated(*) aspects of the American form of government to a general audience.

          On the one hand, you want to boil it down and make it understandable. Yet that runs the risk of making the subject appear more definite and defined, and less situationally-variable, than is warrantable by the precedents.

          On the other hand, if it’s overly emphasized that WEX is focusing there on—

          … how to define executive privilege in judicial setting.

          Then, a risk is that the conversation may drift into the optics of presidential–congressional disputes, and then further drift off into the incoherence of whether the courts even ought to referee those fights — all without the readers ever gaining a good idea of the basics.

          That WEX article doesn’t talk about, and wikipedia only briefly mentions, executive-legislative branch “accomodation”.

          There are trade-offs that ought to be well-considered.

          ((*) See “liquidated“. Cf. Art.II § 1, first sentence.)

        • earlofhuntingdon says:

          The reference should be to Cornell Law School. Wex is what it refers to as the legal dictionary its Legal Information Institute sponsors. Cornell’s free online resources are exceptional.

          The information given is both a starting point and as much information as the average reader wants. Feel free to find and read more.

    • HW3 says:

      I can see logic to executive privilege in protecting work product that is incomplete. I have worked in government agencies where raw data is only discoverable once it has been incorporated to a final draft that is used for regulation. Interim drafts and analyses are not useful, and do look like they need work. Raw material and final drafts however, yes, need to be shared. But I can’t imagine being banned from talking about how you went about taking the raw data and used it to produce the final product on which let’s say regulation was based even if you shouldn’t need to produce the daily revisions of working drafts that led up to the final.

      Hiding visitors, like Dick Cheney did, seems purely corrupt.

      • rip says:

        Agree. That meeting between Cheney and many energy-sector bigwigs was a slap in the face to open government. Since we still don’t know what happened, we can surmise that it meant increased money for them and less for us.

      • timbo says:

        Yes. Hiding who your advisors are means there’s no individual or collective responsibility for bad decision making and bad processes. There limited cases to be made for when this might be absolutely necessary, however I think we can mostly agree that domestic political embarrassment shouldn’t be one of them.

  10. Bittersweet says:

    What am I missing here? There is a distinction between actions a President can make for the purpose of governing and the purpose of running his re-election campaign. (Hence the old technique of going to the private residence to make campaign calls). This applies to his consul and aides too, does it not? Wouldn’t this distinction determine executive privilege? Surely trying to get yourself proclaimed President by throwing away the electors is an action having to do with your reelection, not governance. So why would executive privilege be an issue? The attempted crime has to do with his campaign. If the lawyers were his private ones, then they can not cover up a crime. If they were the Office of the President’s lawyers, then is the current President the one who determines whether they can testify?

    • John B. says:

      Yeah, good questions…but TFG was infamous for blurring the lines between his “governing” and his electioneering; see for example the election rally held at the White House…he didn’t care about those pesky rules like the Hatch Act and consistently and brazenly flouted that in the wide open and that somehow along with a supine DoJ shielded him from any serious consequences.

    • noromo says:

      Also, 5th (?) para: “…we know some very specific details about what the men have hid via privilege claims:” should be “…have hidden via….” (Sorry, grammarian in me.)

  11. Pedro P says:

    “As your own posts have pointed out, it’s about a massive breach in our national security, whether or not Trump actually sold or used his document trove to extort or raise money.”

    LOL.. did you have your tin foil hat on when you wrote that one Earl?

    [FYI – this borders on ad hominem. Focus on the post if you can’t rebut a comment on its merits. /~Rayne]

    • Pedro P says:

      Gee, no FYI here??

      September 25, 2022 at 11:54 am
      There is a difference between ignorance and stupidity.

      Ignorance can be cured with knowledge

      [Benji didn’t direct it at the commenter. You, however, for insisting on policing comments, are now going into time out. Have a nice, quiet evening. /~Rayne]

        • Benji says:

          Welp, apologies gang – not sure where Pedro P got the idea that my comment was anything other than an observation. I find ad hominem attacks distasteful.

          Now if someone leaves an opening large enough to drive a truck through and they catch a well placed zinger I can either go to my basic excuse (Tourettes) or hope they have cultivated a f¥€£ed up sense of humor as a coping mechanism.

  12. GrantS says:

    Doesn’t Pence simply have the option (but not the fortitude) to publicly reveal his side of the story? I assume if Trump was acting illegally there’s no need to keep it secret.

    If course there is the tidbit of Pence ordering the National Guard without having the authority to do so. I hope that’s not what has kept him quiet.

    • Overshire says:

      Pence wants to be President, and knows he’ll lose every Trumpie’s vote the first time he tells the truth. The very last thing he wants to do before 2024 is to testify under oath, even if he doesn’t have a snowball’s chance of ever being cruel enough for the base.

      • Troutwaxer says:

        Pence is never going to be president. But if he plays his card right he just might be the guy history remembers for making sure we didn’t go fascist.

        Not gonna happen, I know, but he’d be key to the anti-Trump effort if he got his shit together.

  13. rattlemullet says:

    In my opinion. A man like trump surely has exposed the weaknesses in our Constitution and our form of Government. A man of zero integrity, no idea on how to govern for the good of the nation and sees the entire process of being President through the lens of a second rate NY developer. He first see it as a money making cartel, second he see himself impervious to accountability with king like powers, he can manipulate the branches of government with a small cadre of insiders and high level appointees and can over throw the government….almost. His failure was relying on the rubes that stormed the Capital they were not trained and failed to have true leadership on the field of battle. The ultimate goal of the insurectionist mob was to kidnap and kill. A trained militia they were not. The process with someone with less of a defective personality and better at coordination and planning would have succeeded.

  14. UziTenenbaum says:

    Setting aside the legal merits of the EP claim: for argument’s sake, if, say, Marc Short *wanted* to testify about this (or, hell, just spill it on 60 Minutes), could Trump’s executive privilege claim legally prevent him from doing so?

    • FLwolverine says:

      You are not alone in wondering that. Also, once somebody talks – and assuming no national security information is disclosed – what’s the penalty?

    • timbo says:

      I’m not a lawyer or an expert in this area of the law but it seems to me that the 1st Amendment right of an individual would trump EP pretty much. What a lot of this is about is “showing deference to the office” of the US President; ie virtue signaling as a way to distract from their own possible involvement in malfeasance.

      • bidrec says:

        Not a lawyer, what I know about executive privilege is what I read here. However, I have read a lot of contracts. On Wall St it is common for a termination of employment agreement to have a non-disparagement clause. The penalties are pretty severe—but do not include prison.

        I would suggest that it is because she disparaged Donald Trump that Alan Weisselberg’s daughter-in-law cannot see her children.

        • timbo says:

          >I would suggest that it is because she disparaged Donald Trump that Alan Weisselberg’s daughter-in-law cannot see her children.

          What does that have to do with EP and 1st Amendment rights?

        • bidrec says:

          Non-disparagement agreements–and non-disclosure agreements–trump First Amendment rights like EP apparently does.

        • bidrec says:

          After Tony Coelho left congress for Wall Street he was profiled in a magazine called Manhattan, Inc. His friend Dick Gephardt asked him what bankers thought of the denizens of Washington, DC. After some thought Tony said, “To tell the truth, they don’t think about you at all.”

          The Supreme Court may have something to do with contract law, I just don’t see it.

  15. punaise says:

    Newest addition to Trump’s legal team sidelined in Mar-a-Lago search case

    The newest addition to former President Donald Trump’s legal team, Chris Kise, has been sidelined from the Mar-a-Lago documents investigation less than a month after he was brought on to represent Trump in the matter, two sources familiar with the move tell CNN.

    Kise is expected to remain on Trump’s legal team but is not leading the work related to the federal government’s investigation into how the former President handled 11,000 documents seized from his Florida home in August following a lengthy effort by the government to retrieve them. The reason for the shift in Kise’s role remains unclear and he may instead focus his efforts on the other investigations Trump is facing, which range from his business practices to the January 6 insurrection.

    • earlofhuntingdon says:

      The exquisite utility of the passive voice. The apparently competent lawyer on the team, the lawyer most experienced with appellate law and practice in Florida, the one Trump supposedly paid the most money to, $3 million, has been “sidelined.” Who sidelined whom? And then there’s this morsel, later in the article:

      Trump spokesman Taylor Budowich said: “Chris Kise’s role as an important member of President Trump’s legal team remains unchanged, and any suggestion otherwise is untrue.”

      That’s the sort of thing a Trumpist, who believes lying to the press is a politician’s duty, would say when the exact opposite is true. My WAG would be that Kise refused to be a party to whatever defense strategy Trump is insisting on. That, and he probably takes notes.

      • bmaz says:

        Yeah, there is an issue there. In some form. This is why I kept saying Trump could find at least competent criminal lawyers, but would have to pay them bigly up front. Kise is “sidelined” because they just gave him three million and are not likely getting it back. Would love to see the fee agreement on this.

      • Mister Sterling says:

        “Who sidelined whom?”

        Well that depends on whether or not Kise has received a single check or wire transfer. There have to be fewer than 10 lawyers in the US who are both (a) competent and (b) willing to work pro bono to defend Trump.

        • earlofhuntingdon says:

          Kise had been a partner at Foley, FL’s solicitor general, and was competent to represent Trump, if competent representation was what Trump really wanted. Having left Foley, he was launching his own small law firm.

          Which means he was smart enough not to begin work for a client like Trump until he had the money in hand, under the terms of a binding retention agreement that favored Kise.

        • bmaz says:

          Nobody knows. I would have expected a retainer of at least five Mil. It is not just the lawyer(s), it is all the staff and experts to help sort through all the mess. That costs real money. And you may only get paid once with Trump.

        • earlofhuntingdon says:

          Absolutely. A client is paying for the skills, experience, staffing, and IT resources of a firm able to handle arcane legal issues and complex litigation. And that’s the guy Trump sidelined? Plus, who imagines Trump would sign and deliver two good checks for such large amounts?

        • earlofhuntingdon says:

          For comparison, oil man Ed Doheny paid Frank Hogan $1 million c. 1925 to defend him in the Teapot Dome bribery litigation, and paid him another million success fee. (Some feat, as the counter-party in the bribery case was convicted.) Frank Hogan founded what is today Hogan Lovells. (Hogan said his favorite client was a scared wealthy man.)

          Conservatively adjusted for inflation, $1 million then is worth about $17 million today. So, yea, the three mill was cheap.

        • Rugger9 says:

          What surprises me is that Individual-1 (allegedly) paid it up front without making certain he would get what he wanted from Kise. 3 million dollars are an awful lot of bikkies for window dressing or legal prop. The attitude doesn’t surprise me, remember how Individual-1 had Team Kraken come to visit through the back door after being told by the competent WH counsels the J6 plan was lunacy. Sidelining was almost expected, but at least Kise got paid unlike Eastman (allegedly) who filed a claim to get fees for his ‘work’.

          If any competent lawyer works on a post-hearing or contingency plan now they’re not very bright especially considering the risk posed by the NYS civil action taking away the business licenses, etc.

        • punaise says:

          The refs are signalling “false start”. Or maybe he stepped out of the end zone for a safety? (Oops, wrong thread!)

      • Troutwaxer says:


        Donald Trump Sr. speaks to a really good defense lawyer, and the first thing he hears from his new hireling is some variation on the “shut up” speech. Following this important moment, how long does the attorney-client relationship last?

        1.) Hours.
        2.) Days.
        3.) Weeks.
        4.) Until the new defense lawyer needs an attorney of his own.

        • Legonaut says:

          What’s the quantum of legal time? Each lawyer/firm has their own minimum billable interval, and there’s probably something customary, but I’ve never heard of a generally-accepted standard.

          I propose the microScaramucci.

        • vvv says:

          I do believe 1/10th of an hour (6 minutes) is standard.

          In “legal time” that means 7 minutes can be billed at .2 of an hour.

        • vvv says:

          I read some seminar materials a while back that said it may be unethical to bill for reading an acknowledgement or other short email, or even writing one.

          But yeah, when you factor in the need to log it …

          Most of my AM yesterday was spent on month’s end billing; spell checking and cleaning up logs is not something I feel comfortable billing for, despite the time put into it.

  16. paul lukasiak says:

    Does anyone understand why “executive privilege” is even considered to be a valid excuse not to testify in front of a grand jury.

    Its illegal to disclose grand jury proceedings, after all, so anyone disclosing “privileged” materials would be subject to criminal sanctions. That guarantee should be sufficient to compel testimony regardless of any ‘executive privilege’ claims, especially in a criminal investigation.

    Its especially disturbing that all these proceedings regarding executive privilege are taking place in secret. Instead, why not charge anyone who refuses to testify based on ‘executive privilege’ with Criminal Obstruction of Justice, which would allow the arguments for and against executive privilege to be done in open court, where they belong.

    • earlofhuntingdon says:

      EP exists as a privilege to avoid executive branch disclosures, under appropriately limited circumstances, to the legislative and judicial branches. That’s why it is a potentially valid reason to refuse to answer a grand jury or congressional committee’s questions about certain topics, on a question-by-question basis.

      Traditionally, it is an institutional right, wielded by the sitting president, to protect the presidency and the executive branch. It does not attach to the person of the president or former president. Trump wants to extend it to himself, as a former president, and to disclosures within the executive branch itself – to the DoJ. As usual, he is pushing the envelope to protect himself alone.

      Ironically, EP is not a creature of statute or the Constitution, but is a right whose existence the courts have found to be implied in the president’s Art. II powers. It’s up to the federal appeals courts to determine its reach, which will take no short amount of time.

      • earlofhuntingdon says:

        The OLC’s position in these memos is mostly aggressive and one-sided, and largely untested in court. The opinions discussed in that article bracket Nixon’s resignation during Watergate, and end with the surge described as the unitary executive theory under Reagan.

        One might bear in mind that Reagan’s administration was filled with legal and foreign policy scandals, Iran-Contra among them, several of which threatened to engulf the president and vice president personally. The executive branch’s OLC attempted to insulate them. But that does not make its positions good law or policy, or immune from the federal judiciary’s established right to be the final arbiter of the Constitution’s meaning.

        It boggles the mind, for example, that the OLC could take the position that an implied power of the presidency, held by the courts to have arisen out of its express authority under Art. II of the Constitution, is not a matter on which federal courts could opine.

        That would be similar to the contemporary radical right’s independent state legislature fantasy, which seems to argue that legislatures are creatures of a virgin birth, or that they have arisen in perfect isolation, like Aphrodite emerging from sea. In fact, state legislatures exist because state constitutions created them – as they did state executive and judicial branches – and have the rights and limitations, and exist in the context of the checks and balances established by those state constitutions.

        • Tim L. says:

          I believe EP only applies to the exec’s official, lawful duties, and should not necessarily apply when the guy is unlawfully trying to overturn an election. (Say he was plotting murder* – that’s not protected.) Ultimately it would still turn on whether witnesses are willing to talk. I think the WH lawyers involved do want to talk.

          *Drone strikes excepted.

    • J R in WV says:

      I an not a lawyer, but I believe that while Grand Jury proceedings are confidential, a witness may, following their appearance before a Grand Jury, disclose or discuss their testimony, so long as they do not disclose anything besides their testimony. Not sure if that includes the questions they were asked, but that could be surmised from the answers they provide following their appearance. I also know that many witnesses just walk away afterwards, sometimes through a back door…

      You lawyers, isn’t this how Grand Jury testimony works?

      • bmaz says:

        Yes, basically, that is it. There might be some further constraint if there was particularly sensitive information discussed in the GJ.

  17. Willis Warren says:

    There’s a lot of damage that’s already been done with the circus that’s followed. A lot of our internal security limitations are now known, and there’s all new corruption plans forming from anyone who’s watching this debacle unfold. The limits of the law in handling this type of security issue is a glaring security hole

    • L. Eslinger says:

      Judge Cannon may be keen on bottling up more bad publicity for Team Trump, including all press related to their inability to substantiate Trump’s rantings.

      • earlofhuntingdon says:

        Publicity is probably only a small part of this. Her remit, so far, only extends to a minor civil action in a larger play. So committed a Trumpist as Cannon might want to follow Bill Barr’s lead. And she almost certainly wants to avoid or reduce the visibility of a public record – revealing both damning facts and absurd legal positions – which Dearie’s interim reports might well do.

    • earlofhuntingdon says:

      Marcy noted a few hours ago on twtr that Trump has been “unable” to find a digital docs vendor. That suggests he won’t cooperate with what’s required, refuses to pay up front, or is slow-walking withdrawing from his suit because it’s not working out for him.

      Marcy noted Trump abruptly stopped contesting the SM review of Michael Cohen’s electronic devices in NY, when it looked like Trump had nothing to fear from it. Here, Trump may have nothing more to gain from it.

      Finding a docs vendor would ordinarily be quick and easy, if you had the money, a reasonable level of staffing, skill, and will. Trump has the money, or so he says. What might be lacking is the will to pursue what’s increasingly looking like a losing case. That might be one reason he has sidelined the most competent lawyer on his FL team, Kise.

      Dearie’s response has been to push back his most immediate deadlines a week. The DoJ’s response has been to arrange for and guarantee payment to a vendor, with a right of recovery from Trump (which I suggest they pursue immediately). That’s what they would do if pushing the case forward advances their overall position vis a vis Trump.

  18. punaise says:

    I’ll just plop this right here as a night-capper for our resident RICO “enthusiast” to chew on: /s

    Prosecuting Boss Trump: Build a RICO case against his entire criminal empire

    Donald Trump has run a criminal enterprise for more than 40 years. We can’t allow him to get away with any of it

  19. Thomas says:

    The privilege claims are all that the whole gang of traitors and criminals have to stall and delay their criminal cases.

    The Republican Senators who are accomplices in some of Trump’s crimes used their positions to delay the appointment of every Justice Department official. They were attempting to delay their own prosecutions, and the prosecution of Trump and his gang.

    Over the next couple of years, all of the endless delay and obstruction tactics used by extremely filthy rich oligarchs to create a lawless criminal syndicate that is beyond the reach of law, will be exposed.

    These arrogant liars, frauds, thieves and aspiring fascist crime kingpins are going to get a rectal examination of their claims to power.

    Their power is based upon wealth and money, but what is that based upon? Corporate titles. Where do these corporate titles come from? Why, they come from corporate charters.

    Where do these corporate charters come from? State governments. Whose the boss of the state governments? WE ARE. WE THE PEOPLE.

    It has been over 80 years since we had a discussion about this particular issue. Back then, the corporations were ordered by law to conform to governing practices that would have abolished fascism. Did they obey those laws? NOPE.

    Have they leveraged that criminal power to gain more powers that they illegally assert? Yes they have. Who are the bankrollers of the fascist movement in this country and abroad? Criminals. Aspiring oligarchs. Friends of Putin.

    It is time to revoke their charters with antitrust suits and fire the arrogant criminals who are stealing money from us to bribe politicians and “legalize” their crimes, and then turn around and fund nazis who stick military weapons in our faces and try to overthrow our democracy.

    And then they should be jailed. I’m ok with jailing all 50k of the white nationalist terrorists and turning them into 13th Amendment slaves. We can bring some black drill seargeants out of retirement to ride their asses and make them work for a change. There’s lots of work to be done. Dirty, dangerous, life-threatening work.

    There’s about 20k arrogant fucks who imagine themselves to be masters of the universe.
    We will give them the dignity of work, too!

    Meanwhile, the overwhelming majority of the rich people will gladly pay more taxes, help us build the 21st century, and agree to corporate reform.

    Two thirds of the population will cheer when we start throwing the fascists into work camps. The rest of them better keep their mouths shut and do what they are told.

    We will tell them things like
    “You are not a member of a militia and organizing to attack the government with military weapons will get you shot to death or sent to the labor camp.”
    Or this:
    “You will not be allowed to spread false information that endangers people’s lives to enrich yourself with a conspiracy theory grift.”
    OR this:
    “You will not be allowed to strip other people of their rights or organize efforts to do so.”
    Or this:
    “You will not steal millions of dollars and use it to commit felonies, like bribery, or financing a militia.”

    That sounds really totalitarian, doesn’t it? The fascists think they should be allowed to do whatever they want to do. They should be free to strip other people of their rights, or defraud millions of people, or use armed coercion as a political tactic.

    They don’t want to obey laws. Laws are to control women or colored people or to legalize harassment of people that they don’t like.

    We need to FORCEFULLY reject that, and we can start by getting RID of the fascist leadership.

    You are at the beginning of it now.

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