As CNN reports, the Department of Justice is “confronting the privilege issue with care.” Attorney General Merrick Garland made a very welcome statement last week in which he finally made it clear that no one, including Trump, was clear of potential charges related to the attempted coup. But so far the department doesn’t seem to have pressed witnesses to provide what they consider to be privileged information, which in this case appears to be any direct communication with Trump.
This is not how executive privilege is supposed to work. In past cases, claims of privilege have required just that: a claim from the White House asserting privilege over specific written or spoken communications. But throughout his time in Washington, Trump made extensive and expansive claims of privilege, not only refusing to cooperate in matters related to his two impeachments, but instructing officials to refuse to release even routine information. In almost all cases, White House officials refused to say that Trump was officially asserting privilege, and Trump refused to comment. There was just a broad claim of undefined privilege, which in some cases was extended to junior officials who never came close to talking with Trump.
Such blanket claims of privilege leave the Department of Justice facing a dilemma when it comes to investigating the events of Jan. 6 and the other ways in which Trump attempted to overturn the results of the 2020 election.
There’s no doubt now that the Department of Justice is deep into an investigation of actions by many members of the White House, including former Chief of Staff Mark Meadows, attorney John Eastman, and attorney Rudy Giuliani. In recent days, a federal grand jury has heard testimony from false electors who were encouraged to take part in Trump’s scheme, as well as Marc Short and Greg Jacob who were, respectively, chief of staff and lead counsel to Mike Pence.
Trump’s efforts to extend privilege to new levels have already met with some defeats in court, most notably when he was forced to hand over a large tranche of documents that he had sought to protect at Mar-a-Lago and was required to release other documents held by the National Archives. But the broader case of exactly how much right Trump has to protect his conversations after he has left office remains unsettled law.
There are good reasons to believe that the answer to how much privilege Trump now enjoys is none, and that practically every conversation that Trump had regarding Jan. 6, even those with his personal attorneys, would fail any reasonable test of privilege because these statements were directly related to a conspiracy to commit a serious crime. That would be completely in line with how courts ruled during Ken Starr’s prolonged investigation into the Clinton White House.
But if the Department of Justice plans to cut through Trump’s privilege claims, it had better get cracking. A Department of Justice inquiry into a member of Clinton’s Cabinet took two years to obtain a final ruling.