Special counsel Jack Smith and his team of federal prosecutors are very busy as they investigate Donald Trump’s efforts to overturn the 2020 elections and his hoarding of classified documents at Mar-a-Lago. Mike Pence is preparing to fight their subpoena on the claim that he was acting as the president of the Senate on January 6 and is therefore protected by the Constitution’s “speech or debate” clause. They’ve subpoenaed former White House chief of staff Mark Meadows, setting up a likely fight over executive privilege. And aside from those things, CNN reports they are engaged in at least eight secret court cases.
Meadows has a lot to answer for, if he can be compelled to talk. Text messages he turned over to the Jan. 6 committee show him communicating with at least 34 members of Congress about efforts to overturn the election. He was on the phone call in which Donald Trump called on Georgia Secretary of State Brad Raffensperger to “find 11,780 votes” for Trump. He was with Trump for significant parts of Jan. 6 as Trump supporters attacked the U.S. Capitol. In addition to all of that, he even has a role in the classified documents saga—Meadows at one point assured the National Archives and Records Administration that Trump just had 12 boxes of “news clippings.”
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Meadows will likely claim that executive privilege bars him from answering the special counsel’s questions, but he already lost on that claim when he fought a subpoena in the Georgia special grand jury investigation into Trump’s efforts to overturn the election in that state.
So there’s Meadows. There’s Pence, whose efforts not to talk will be fought not on executive privilege grounds but on “speech or debate” clause grounds—he’s claiming that because he was acting in his role as the president of the Senate on Jan. 6 itself, he was in that role for all of his discussions with Trump about the outcome of the election, and cannot be compelled to testify. And then there are those secret court battles, which seemingly do not yet include efforts by Meadows or Pence to fight their subpoenas.
One of those secret (until it got out this week) cases is the attempt to force Trump lawyer Evan Corcoran to answer questions on which he has previously asserted attorney-client privilege. Those questions apparently apply to Corcoran’s role in turning over 30 classified documents and then asserting that a “diligent search” of Mar-a-Lago had been conducted and there were no more documents. When the FBI later got a warrant and searched the property, they found more than 100 classified documents. The way around attorney-client would be through the crime-fraud exception, which applies when there’s evidence that a client used a lawyer’s advice in the furtherance of a crime or fraud, so the attempt to get Corcoran to talk involves a pretty clear statement that the special counsel is concluding Trump committed a crime there.
CNN reports that among the other secret filings related to the special counsel’s investigation are efforts to get other people in Trump’s orbit to testify fully. Those include former Pence aides Greg Jacob and Marc Short and former White House counsel Pat Cipollone and deputy counsel Patrick Philbin. Rep. Scott Perry is trying to keep the Justice Department from accessing data on the cell phone the FBI seized from him in August, a matter that will soon be heard by an appeals court. And the Justice Department is still trying to enforce its May 2022 subpoena for Trump to return all, yes all, of the classified documents he took when he left the White House. Two people involved in searching Trump’s properties testified to the grand jury last month.
Smith is definitely engaged in an aggressive and thorough investigation of Trump. Trump’s loyalists are doing their best to slow down or otherwise hinder the investigation, but it sounds like Smith has a lot to work with already. Here’s hoping for a speedy and satisfying conclusion.
President Biden's State of the Union was a masterclass in politics. The Republican Party, like a headless hydra, is unable to find a meaningful policy to get behind. Markos and Kerry talk about the highlights of last week and the enjoyment of watching Senate and House conservatives snipe at one another.
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