Executive Privilege, Doctrine of

Subterms

    More stories

    • 125 Shares199 Views

      in Elections

      Justice Dept. Seeking to Question Pence in Jan. 6 Investigation

      by

      Prosecutors want to speak with the former vice president as a witness to former President Donald Trump’s efforts to remain in power, and he is said to be considering how to respond.The Justice Department is seeking to question former Vice President Mike Pence as a witness in connection with its criminal investigation into former President Donald J. Trump’s efforts to stay in power after he lost the 2020 election, according to two people familiar with the matter.Mr. Pence, according to people familiar with his thinking, is open to considering the request, recognizing that the Justice Department’s criminal investigation is different from the inquiry by the House Jan. 6 committee, whose overtures he has flatly rejected.Complicating the situation is whether Mr. Trump would try to invoke executive privilege to stop him or limit his testimony, a step that he has taken with limited success so far with other former officials.Mr. Pence was present for some of the critical moments in which Mr. Trump and his allies schemed to keep him in office and block the congressional certification of Joseph R. Biden Jr.’s victory. An agreement for him to cooperate would be the latest remarkable twist in an investigation that is already fraught with legal and political consequences, involving a former president who is now a declared candidate to return to the White House — and whose potential rivals for the 2024 Republican nomination include Mr. Pence.Thomas Windom, one of the lead investigators examining the efforts to overturn the election, reached out to Mr. Pence’s team in the weeks before Attorney General Merrick B. Garland appointed a special counsel on Friday to oversee the Jan. 6 investigation and a separate inquiry into Mr. Trump’s handling of classified documents, according to one of the people familiar with the matter. Mr. Garland has said that the appointment of the special counsel, Jack Smith, will not slow the investigation.Officials at the Justice Department declined to comment. A spokesman for Mr. Pence also declined to comment.The discussions about questioning Mr. Pence are said to be in their early stages. Mr. Pence has not been subpoenaed, and the process could take months, because Mr. Trump can seek to block, or slow, his testimony by trying to invoke executive privilege.Mr. Trump has cited executive privilege to try to stop other former top officials from talking with investigators. While those efforts have generally been unsuccessful in stopping testimony by the officials to a federal grand jury, they have significantly slowed the process.Mr. Trump’s efforts to slow or block testimony included asserting executive privilege over testimony from two of Mr. Pence’s top aides: his former chief of staff, Marc Short, and his general counsel, Greg Jacob. But both men returned for grand jury interviews after the Justice Department, in a closed-door court proceeding, fought the effort to apply executive privilege.Mr. Pence, who rebuffed Mr. Trump’s efforts to enlist him in the plan to block certification of the Electoral College results, has been publicly critical of Mr. Trump’s conduct in the run-up to the Jan. 6 assault on the Capitol and on the day of the attack, when members of a pro-Trump mob were chanting “Hang Mike Pence.”Understand the Events on Jan. 6Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.During an appearance in New Hampshire in August, Mr. Pence indicated he was open to appearing before the House Jan. 6 committee, which had been pushing to have him tell his story, but he offered a caveat.“If there was an invitation to participate, I’d consider it,” Mr. Pence said at the time. But he added that he was concerned that speaking to a congressional committee would violate the doctrine of separation of powers between the executive and legislative branches. “But as I said, I don’t want to prejudge. If ever any formal invitation” came, he said, “we’d give it due consideration.”However, in interviews for the release of his new book, “So Help Me God,” Mr. Pence has been more emphatic in his opposition to providing testimony to the House committee, asserting that “Congress has no right to my testimony” about what he witnessed.“There’s profound separation-of-powers issues,” Mr. Pence told The New York Times in an interview. “And it would be a terrible precedent.”But Mr. Pence, according to people familiar with his thinking, sees the Justice Department inquiry differently given that it is a criminal investigation. His testimony could be compelled by subpoena, though none has been issued.The former vice president is being represented by Emmet Flood, a veteran Washington-based lawyer who served as the lead Trump White House lawyer dealing with the investigation by Robert S. Mueller III, the special counsel, into possible conspiracy between the Trump campaign and Russia in 2016.Mr. Flood is representing several other top White House officials who find themselves as witnesses in the range of congressional and Justice Department investigations into Mr. Trump, including Mr. Short.An increasing number of high-ranking officials in Mr. Trump’s administration have received grand jury subpoenas as part of the Justice Department’s inquiry into a wide array of efforts to overturn the election, including a plan to create fake slates of pro-Trump electors in key swing states that were won by Mr. Biden.The wide-ranging subpoenas sought information on a host of subjects that included the fake elector plan, attempts to paint the election as having been marred by fraud and the inner workings of Mr. Trump’s main postelection fund-raising vehicle, the Save America PAC.The effort to seek an interview with Mr. Pence puts both the department and the former vice president in uncharted territory.Mr. Pence is considering a campaign for president in 2024, in a race that Mr. Trump has already announced his candidacy for. And Mr. Biden’s Justice Department is seeking to use Mr. Pence as a potential witness against Mr. Trump; either could end up as rivals to Mr. Biden should he run again, which he has indicated is likely.Mr. Pence has written in detail in his book about Mr. Trump’s efforts to stay in power and the pressure campaign he imposed on his vice president beginning in December 2020.Among other interactions he describes, Mr. Pence details how Mr. Trump summoned him to the Oval Office on Jan. 4 to meet with a conservative lawyer named John Eastman, who repeatedly argued that Mr. Pence could exceed the ceremonial duties of overseeing the Electoral College certification by Congress. Mr. Eastman was promoting the notion that Mr. Pence had the power to set aside the results from states where Mr. Trump was still trying to challenge the outcome.Mr. Pence writes about telling Mr. Trump that he did not have such authority. In an interview with The Times in connection with the book, Mr. Pence was forceful, saying that he was blunt with Mr. Trump that he could not do what he wanted.“In the weeks before Jan. 6, I repeatedly told the president that I did not have the authority to reject or return electoral votes,” Mr. Pence said in the interview. “It was clear he was getting different legal advice from an outside group of lawyers that, frankly, should have never been let in the building.”In that period of time, Mr. Trump began to publicly pressure Mr. Pence, as well as officials in Georgia, to go along with his efforts to remain in office. At the same time, Mr. Trump began using his Twitter account to try to draw a crowd to Washington for a “protest” at the Ellipse near the White House on Jan. 6, the day of the congressional certification.The Times has previously reported that Mr. Pence’s chief of staff, Mr. Short, called Mr. Pence’s lead Secret Service agent, Tim Giebels, to his West Wing office on Jan. 5, 2021. When Mr. Giebels arrived at Mr. Short’s office, the chief of staff said that the president was going to turn on the vice president, and that they would have a security risk because of it, a conversation that Mr. Short described to the House select committee. The committee released a video snippet of Mr. Short discussing it at one of its public hearings this year.Mr. Trump addressed the crowd at the Ellipse at midday on Jan. 6 and again pressured Mr. Pence, whom he had called a few hours earlier in a further effort to persuade him to go along with the last-ditch plan to block the certification.In his address at the Ellipse, Mr. Trump said: “You’re never going to take back our country with weakness. You have to show strength and you have to be strong.”He went on: “So I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.”A short time later, Mr. Trump’s supporters marched to the Capitol, where Mr. Pence was. Hundreds of them stormed the building, smashing windows and barreling through doors, forcing Mr. Pence, his wife and his daughter to flee his office in the Capitol and take refuge on a loading dock underground. He stayed there, working to get the situation under control as Mr. Trump watched the coverage of the riot on television at the White House.Mr. Pence wrote about the experience in his book, and has since described his anger that Mr. Trump was “reckless” and “endangered” Mr. Pence and his family.Despite Mr. Pence being a witness to a range of Mr. Trump’s actions in office, an interview of the former vice president would be the first time that he has been questioned in a federal investigation of Mr. Trump.Mr. Pence was in the room for many of the key events examined by Mr. Mueller in the obstruction investigation, but Mr. Pence’s lawyer at the time managed to get him out of having to testify.The lawyer, Richard Cullen, met with Mr. Mueller and his team, telling them that Mr. Pence believed Mr. Trump had not obstructed justice and what he would say if questioned.Mr. Mueller’s team never followed up to question Mr. Pence, and he was never cited as a witness against Mr. Trump in Mr. Mueller’s final report.Glenn Thrush More

    • 188 Shares189 Views

      in Elections

      Justice Dept. Seeks to Force Trump White House Lawyers to Testify in Jan. 6 Inquiry

      by

      The move is part of an effort by prosecutors to punch through the claims of privilege the former president is using to hamper the investigation of his push to overturn the election.The Justice Department has asked a federal judge to force the two top lawyers in Donald J. Trump’s White House to provide additional grand jury testimony as prosecutors seek to break through the former president’s attempts to shield his efforts to overturn the 2020 election from investigation, according to two people familiar with the matter.Prosecutors filed a motion to compel testimony from the two lawyers, Pat A. Cipollone and Patrick F. Philbin, last week. They told Beryl A. Howell, a judge in Federal District Court in Washington who oversees grand jury matters, that their need for the evidence the men could provide should overcome Mr. Trump’s claims that the information is protected by attorney-client and executive privilege, the people said.The filing was the latest skirmish in a behind-the-scenes legal struggle between the government and Mr. Trump’s lawyers to determine how much testimony witnesses close to the former president can provide to the grand jury, which is examining Mr. Trump’s role in numerous schemes to reverse his election defeat, culminating in the mob attack on the Capitol on Jan. 6, 2021.Mr. Cipollone, Mr. Trump’s former White House counsel, and Mr. Philbin, who served as his deputy, initially appeared before the grand jury last month after receiving subpoenas, but declined to answer some of the questions prosecutors had about advice they gave to Mr. Trump or interactions they had with him in the chaotic post-election period, one of the people familiar with the matter said.The government’s filing, which was reported earlier by CNN, asked Judge Howell to force the men to return to the grand jury and respond to at least some of the questions they had declined to answer.If compelled to testify fully, Mr. Cipollone and Mr. Philbin could provide the grand jury with firsthand accounts of the advice they gave Mr. Trump about his efforts to derail the results of the election with a variety of schemes, including one to create fake slates of pro-Trump electors in states won by Joseph R. Biden Jr. They could also tell the grand jury about Mr. Trump’s activities and mind-set on Jan. 6 and the tumultuous weeks leading up to it.Judge Howell has already ruled in favor of the government in a similar privilege dispute concerning testimony from two top aides to former Vice President Mike Pence, Marc Short and Greg Jacob, according to several people familiar with the matter. Both Mr. Short and Mr. Jacob returned to the grand jury this month and answered questions that Mr. Trump’s lawyers had sought to block as being privileged during their original appearances.Prosecutors are also seeking to force Patrick F. Philbin, the former deputy White House counsel, to provide additional testimony.Erin Schaff/The New York TimesThe closed-door battle over how much evidence the grand jury should hear about Mr. Trump’s role in reversing his defeat and how much should be kept away as privileged is almost certain to continue as more witnesses close to the former president are called in for testimony.Last month, about 40 subpoenas were issued to a large group of former Trump aides — among them, Mark Meadows, Mr. Trump’s final chief of staff; Dan Scavino, his onetime deputy chief of staff for communications; and Stephen Miller, Mr. Trump’s top speechwriter and a senior policy adviser.It is likely that Mr. Trump will try to assert some form of privilege over the testimony of each of those potential witnesses in a bid to narrow what the grand jury can hear about him.Even as the Justice Department presses forward in seeking evidence about Mr. Trump’s involvement in the events leading up to the Capitol attack, the House committee investigating Jan. 6 is also continuing to hear from witnesses.On Tuesday, Hope Hicks, a former top aide to Mr. Trump, testified for about four hours in front of the panel, according to two people familiar with the matter.The interview of Ms. Hicks, which was conducted virtually, came late in the committee’s 16-month investigation and after it has most likely concluded holding public hearings. Still, the members of the panel have kept pushing for more information about Mr. Trump’s state of mind in the final weeks of his administration and how often he was told there was no evidence of a stolen election.During a meeting with Mr. Trump, Ms. Hicks told the former president that she had seen no evidence of widespread fraud that could overturn the results of the election, according to the book “Confidence Man” by Maggie Haberman, a reporter for The New York Times.“You’re wrong,” Mr. Trump replied, hoping to scare others out of agreeing with her.Throughout August, the panel interviewed top administration officials, including Robert O’Brien, Mr. Trump’s former national security adviser; Elaine Chao, the former transportation secretary; and Mike Pompeo, the former secretary of state. Investigators asked questions regarding reports of discussions about invoking the 25th Amendment to remove the president from office, among other topics.Ms. Hicks served as the White House communications director in 2017 and 2018 and then returned to the White House as a counselor to Mr. Trump during his final 10 months in office.It was not immediately clear exactly what Ms. Hicks told the committee, but investigators went over certain text messages with her, according to a person familiar with the matter.A spokesman for the committee and a lawyer for Ms. Hicks declined to comment.Maggie Haberman More

    • 113 Shares129 Views

      in Elections

      How Trump Could Resist the Jan. 6 Panel’s Subpoena

      by

      If the ex-president turns down the drama of testifying, his legal team could mount several constitutional and procedural arguments in court.WASHINGTON — If former President Donald J. Trump decides to fight the subpoena issued to him on Friday by the House committee investigating his attempts to overturn the 2020 election, his lawyers are likely to muster a battery of constitutional and procedural arguments for why a court should allow him not to testify.In the most basic sense, any legal arguments seeking to get Mr. Trump off the hook would merely need to be weighty enough to produce two and a half months of litigation. If Republicans pick up enough seats in the midterm elections to take over the House in January, as polls suggest is likely, they are virtually certain to shut down the Jan. 6 committee, a move that would invalidate the subpoena.The issues raised by the extraordinary subpoena, which the panel announced at a hearing last week, are too complex to be definitively resolved before a potential change of power in the House, said Mark J. Rozell, a George Mason University professor and author of “Executive Privilege: Presidential Power, Secrecy and Accountability.”“We are in a constitutional gray area here where there is no clear guidance as to exactly what should happen,” Mr. Rozell said. “That gives the former president some leeway to put forward various creative legal arguments and ultimately delay the process until it doesn’t matter anymore.”Several former presidents have voluntarily testified before Congress, including Theodore Roosevelt, William Howard Taft, Herbert Hoover, Harry S. Truman and Gerald Ford. But there is no Supreme Court precedent that says whether Congress has the power to compel former presidents to testify against their will about their actions in office.There are two historical precedents, but neither generated court rulings. In 1846, the House subpoenaed two former presidents, John Quincy Adams and John Tyler, for an investigation into allegations of misspending by a secretary of state. According to a Congressional Research Service report, Tyler testified and Adams submitted a deposition.A subpoena of testimony from Harry S. Truman was eventually dropped by the House after he refused to honor it.The New York TimesAnd in 1953, the House Committee on Un-American Activities subpoenaed Truman. But while he later voluntarily testified before Congress on other topics, Truman refused to honor the committee’s subpoena, claiming that as a former chief executive he was immune from compelled testimony by the legislative branch. The House let the matter drop.One open question, then, is whether Truman was right. Should Mr. Trump’s legal team choose to argue that he was, one Supreme Court precedent could prove relevant: In 1982, the court ruled that former presidents are immune from being sued for damages over official decisions they made while in office.In that case, Nixon v. Fitzgerald, the majority reasoned that presidents must be able to perform their constitutional duties without being inhibited by the fear that a decision could risk making them liable to pay civil damages after they leave office. The question in Mr. Trump’s case would be whether a president could be similarly hindered by a fear of being forced to testify in front of Congress.Mr. Trump’s legal team could also invoke executive privilege in an attempt to ward off the subpoena. In another case involving Richard Nixon, the Court of Appeals for the D.C. Circuit ruled in 1974 that a Senate committee investigating the Watergate scandal could not force Nixon, then the sitting president, to turn over tapes of his Oval Office conversations.The appeals court ruled that the Senate’s need for the tapes was not enough to overcome the presumption of confidentiality guarding the presidential decision-making process. That general confidentiality is important, courts decided, so that presidents can receive candid advice from their aides about how best to carry out their constitutional functions.(More famously, about three months later, the Supreme Court upheld a subpoena by the Watergate prosecutor for the tapes, citing the greater need for them in a criminal proceeding. Soon after, Nixon resigned to avoid being impeached.)Unlike Nixon in 1974, however, Mr. Trump is now a former — not a sitting — president, and his claims to executive privilege would be weaker. The current officeholder, President Biden, who has greater authority to invoke or withhold executive privilege, might not support him..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Notably, Mr. Biden declined to support an earlier attempt by Mr. Trump to invoke executive privilege to keep the Jan. 6 committee from subpoenaing the National Archives for White House records. The Supreme Court, ruling against Mr. Trump, declined to block the subpoena, although it did so in a way that left unresolved the scope of an ex-president’s powers under executive privilege.Still, courts might view forcing a former president to show up at the Capitol and testify under oath differently than obtaining documents. Mr. Biden might also be more reluctant to establish a precedent that could help a Republican-controlled Congress subpoena him for testimony.Mr. Trump could also try to mount a procedural argument that the subpoena is invalid.That tactic has been used by nearly 30 people — among them, former aides to Mr. Trump — who have filed lawsuits seeking to quash subpoenas from the Jan. 6 committee. Many of these witnesses have argued the panel was improperly constituted and the subpoenas are insufficiently connected to writing laws.The first argument goes like this: The House resolution authorizing the committee envisioned that Speaker Nancy Pelosi would appoint 13 members, including five in consultation with Republican leadership. But the panel has only nine members, and neither of its two Republicans — Liz Cheney of Wyoming and Adam Kinzinger of Illinois — were endorsed by the minority leader, Representative Kevin McCarthy of California, who boycotted the process after Ms. Pelosi rejected several of his choices.As for the second, lawyers for the witnesses have argued that the subpoenas were not sent with the goal of assisting Congress in its role in drafting laws, but rather as a politically motivated fishing expedition for embarrassing information about Mr. Trump.In 1974, a Senate committee investigating the Watergate scandal could not force Richard Nixon, then the sitting president, to turn over tapes of his Oval Office conversations.Eddie Hausner/The New York TimesMost of the lawsuits challenging the subpoenas on these — and other — grounds are still working their way through the courts. But in May, a federal judge in Washington dismissed both of the arguments claiming the subpoenas were invalid in a case the Republican National Committee brought against the panel.That ruling, however, was vacated several months later by the Court of Appeals for the D.C. Circuit after the committee dropped its subpoena for the Republican National Committee.A Federal District Court judge also rejected claims that the committee’s subpoenas were invalid in the criminal prosecution of Stephen K. Bannon, a former adviser to Mr. Trump, who was sentenced to four months in prison on Friday for defying a subpoena from the House panel.In a ruling in the case, Judge Carl J. Nichols, a Trump appointee, noted that the full House had voted to hold Mr. Bannon and others who defied subpoenas in contempt, indicating that the body viewed the committee’s subpoena as valid. Judge Nichols said courts must defer to the House’s interpretation of its own rules, so he “cannot conclude as a matter of law that the committee was invalidly constituted.”Still, rulings by district court judges are not definitive precedents, leaving much to litigate.It also remains unclear which route to court a fight over the Trump subpoena could take. Mr. Trump might file his own suit asking a judge to quash it. Or he could wait for the House to try to enforce its subpoena.One way for that to happen would be for the full chamber to vote on whether to hold him in contempt and to refer the matter to the Justice Department for potential criminal prosecution, as it did for Mr. Bannon.It would then be up to Attorney General Merrick B. Garland to decide whether to bring a criminal charge. The Jan. 6 committee could also file its own lawsuit against Mr. Trump seeking a judicial order that he comply. In August 2019, for example, the House Judiciary Committee sued Mr. Trump’s former White House counsel, Donald F. McGahn II, who at Mr. Trump’s direction defied its subpoena seeking his testimony about Mr. Trump’s obstruction of the Russia investigation.The lawsuit set off a series of convoluted legal fights over constitutional issues and was still pending even when Mr. Biden became president in January 2021. That underscores the lack of time for extended litigation in Mr. Trump’s case.Aides to Mr. Trump have said that he has weighed whether to testify, but only under the condition that it be live and on television. That would deprive the committee of controlling what gets seen or from releasing only selected excerpts.Mr. Rozell said that was not surprising.“If Trump is going to go out there and make himself vulnerable, he’s going to do it in a public way,” he said. “It’s going to be a Trump show, and he’ll be playing to his own crowd. At that point, legal argument and nuances would be out the window.” More

    • 138 Shares149 Views

      in Elections

      Trump Lawyers Push to Limit Aides’ Testimony in Jan. 6 Inquiry

      by

      The former president’s legal team is seeking to invoke attorney-client and executive privilege over grand jury testimony after waves of subpoenas went out to witnesses.Lawyers for former President Donald J. Trump are engaged in a behind-the-scenes legal struggle to limit the scope of a federal grand jury investigation into the role he played in seeking to overturn the 2020 election, according to people familiar with the matter.The closed-door battle, unfolding in Federal District Court in Washington, has centered on how far Mr. Trump can go in asserting attorney-client and executive privilege as a means of keeping witnesses close to him from answering potentially damaging questions in their appearances before the grand jury, the people said.The issue is important because it will determine how much evidence prosecutors can get from an inner circle of some of Mr. Trump’s most trusted former lawyers and advisers. The outcome will help to shape the contours of the information that the Justice Department will be able to gather, as it looks into Mr. Trump’s involvement in the chaotic events after the election that culminated in the attack on the Capitol on Jan. 6, 2021.That process continues even as the Justice Department also pursues a separate criminal investigation into Mr. Trump’s handling of government documents that he took with him when he left office, including hundreds marked as classified.A federal appeals court this week blocked a lower court’s order that had stalled a key portion of the documents investigation. And on Friday, the Office of the Director of National Intelligence said that the intelligence agencies had resumed a risk assessment of the classified material seized in the search last month of Mar-a-Lago, Mr. Trump’s residence and private club in Florida. The work involves assessing the potential national security risk that would result from disclosure of the documents, the office announced.The court appearances by the lawyers in the battle over how expansively Mr. Trump would be able to claim privilege in the Jan. 6 investigation, as first reported by CNN, are proceeding under seal, like all matters concerning grand juries. As a general rule, issues that touch on federal grand juries in Washington are overseen by the district’s chief judge, Beryl A. Howell.The court fight comes as an increasing number of high-ranking officials in Mr. Trump’s administration have received grand jury subpoenas as part of the Justice Department’s inquiry into a wide array of efforts to overturn the election, including a plan to create fake slates of pro-Trump electors in key swing states that were won by Joseph R. Biden Jr.This month, more than 40 subpoenas were issued to a large group of former Trump aides — among them, Mark Meadows, Mr. Trump’s final chief of staff; Dan Scavino, his onetime deputy chief of staff for communications; and Stephen Miller, Mr. Trump’s top speechwriter and a senior policy adviser.The wide-ranging subpoenas sought information on a host of subjects that included the fake elector plan, attempts to paint the election as having been marred by fraud and the inner workings of Mr. Trump’s main postelection fund-raising vehicle, Save America PAC.The recent flurry of subpoenas came only days after Pat A. Cipollone, the chief lawyer in Mr. Trump’s White House, and his former deputy, Patrick Philbin, testified before the grand jury. In July, two top aides to former Vice President Mike Pence — Marc Short, Mr. Pence’s onetime chief of staff, and Greg Jacob, his former chief lawyer — also appeared in front of the grand jury.Pat A. Cipollone, the chief lawyer in the Trump White House, has testified before the grand jury.Pete Marovich for The New York TimesWhile the legal wrangling in front of Judge Howell is meant to be secret, three of Mr. Trump’s lawyers — M. Evan Corcoran, John Rowley and Timothy Parlatore — were seen on Thursday leaving the federal courthouse in Washington. Their appearance there was related, at least in part, to discussions about whether Mr. Trump’s assertions of privilege could limit the testimony of Mr. Short and Mr. Jacob, according to a person familiar with the matter.Mr. Parlatore declined to comment. Neither Mr. Corcoran nor Mr. Rowley returned messages seeking comment.Last week, The New York Times reported that Eric Herschmann, another lawyer who had worked in Mr. Trump’s White House, spent weeks this summer trying to get specific guidance from Mr. Corcoran, Mr. Rowley and Mr. Parlatore on how to handle questions that might raise privilege issues since he, too, had been summoned before the grand jury.In emails reviewed by The Times, Mr. Herschmann complained that a letter from Mr. Trump directing him to assert privilege in front of the grand jury — as other witnesses had — was not enough to allow him to avoid answering questions.“I will not rely on your say-so that privileges apply here and be put in the middle of a privilege fight between D.O.J. and President Trump,” Mr. Herschmann, a former prosecutor, wrote in one of the emails, referring to the Justice Department.Mr. Herschmann repeatedly implored Mr. Corcoran and Mr. Rowley to go to court seeking an order from a judge “precluding me from answering questions based on privilege assertions by President Trump,” according to the emails. They ignored his request for many days, before ultimately filing a motion under seal on Sept. 1, just hours before Mr. Herschmann was set to testify, the emails showed. Mr. Herschmann’s grand jury appearance was postponed.Attorney-client privilege is not an ironclad protection for lawyers and can be swept aside in cases where crimes have been committed. In July, for instance, a federal judge in California denied the attorney-client privilege claims of the lawyer John Eastman after finding that Mr. Eastman and Mr. Trump had likely conspired together to obstruct the certification of the presidential election on Jan. 6. Under the judge’s decision, Mr. Eastman was forced to give the House select committee investigating Jan. 6 a trove of his emails.In a somewhat similar fashion, Mr. Trump asserted executive privilege over a batch of his White House records that the House committee wanted to examine as part of its inquiry — even though Mr. Biden, as the current president, had waived executive privilege over the documents.In January, after lower courts had weighed in, the Supreme Court effectively rejected Mr. Trump’s claims and allowed the committee to use records. But an opinion by Justice Brett M. Kavanaugh that accompanied the decision suggested that Mr. Trump should have some residual power to assert executive privilege.“A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim,” Justice Kavanaugh wrote. “Concluding otherwise would eviscerate the executive privilege for presidential communications.”Julian E. Barnes More

    • 113 Shares119 Views

      in Elections

      Trump’s Lawyers Could Face Legal Troubles of Their Own

      by

      Several of the former president’s lawyers are under scrutiny by federal investigators amid squabbling over competence.To understand the pressures, feuds and questions about competence within former President Donald J. Trump’s legal team as he faces potential prosecution on multiple fronts, consider the experience of Eric Herschmann, a former Trump White House lawyer who has been summoned to testify to a federal grand jury.For weeks this summer, Mr. Herschmann tried to get specific guidance from Mr. Trump’s current lawyers on how to handle questions from prosecutors that raise issues of executive privilege or attorney-client privilege.After ignoring Mr. Herschmann or giving him what he seemed to consider perplexing answers to the requests for weeks, two of the former president’s lawyers, M. Evan Corcoran and John Rowley, offered him only broad instructions in late August. Assert sweeping claims of executive privilege, they advised him, after Mr. Corcoran had suggested that an unspecified “chief judge” would ultimately validate their belief that a president’s powers extend far beyond their time in office.Mr. Herschmann, who served on Mr. Trump’s first impeachment defense team but later opposed efforts to reverse the results of the 2020 election, was hardly reassured and sounded confused by the reference to a chief judge.“I will not rely on your say-so that privileges apply here and be put in the middle of a privilege fight between D.O.J. and President Trump,” Mr. Herschmann, a former prosecutor, responded in an email, referring to the Justice Department. The exchange was part of a string of correspondence in which, after having his questions ignored or having the lawyers try to speak directly with him on the phone instead, Mr. Herschmann questioned the competence of the lawyers involved.The emails were obtained by The New York Times from a person who was not on the thread of correspondence. Mr. Herschmann declined to comment.Mr. Herschmann’s opinion was hardly the only expression of skepticism from current and former allies of Mr. Trump who are now worried about a turnstile roster of lawyers representing a client who often defies advice and inserts political rants into legal filings.Mr. Trump’s legal team just won one round in its battle with the Justice Department over the seizure of documents from his residence and private club in Florida, Mar-a-Lago, and it is not clear whether he will face prosecution from the multiple federal and state investigations swirling around him even as he weighs another run for the presidency.Mr. Trump has also just brought on a well-regarded lawyer, Christopher M. Kise, the former solicitor general of Florida, to help lead his legal team, after being rejected by a handful of others he had sought out, including former U.S. attorneys with experience in the jurisdictions where the investigations are unfolding.Mr. Kise agreed to work for the former president for a $3 million fee, an unusually high retainer for Mr. Trump to agree to, according to two people familiar with the figure. Mr. Kise did not respond to an email seeking comment.But Mr. Trump’s legal team has been distinguished in recent months mostly by infighting and the legal problems that some of its members appear to have gotten themselves into in the course of defending him.In a statement, a spokesman for Mr. Trump, Taylor Budowich, said that “the unprecedented and unnecessary weaponization of law enforcement against the Democrats’ most powerful political opponent is a truth that cannot be overshadowed and will continue to be underscored by the vital work being done right now by President Trump and his legal team.”Two members of the Trump legal team working on the documents case, Mr. Corcoran and Christina Bobb, have subjected themselves to scrutiny by federal law enforcement officials over assurances they provided to prosecutors and federal agents in June that the former president had returned all sensitive government documents kept in his residence and subpoenaed by a grand jury, according to people familiar with the situation.That assertion was proved to be untrue after the search of Mar-a-Lago in August turned up more than 100 additional documents with classification markings..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-ok2gjs{font-size:17px;font-weight:300;line-height:25px;}.css-ok2gjs a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}What we consider before using anonymous sources. Do the sources know the information? What’s their motivation for telling us? Have they proved reliable in the past? Can we corroborate the information? Even with these questions satisfied, The Times uses anonymous sources as a last resort. The reporter and at least one editor know the identity of the source.Learn more about our process.Investigators are seeking information from Ms. Bobb about why she signed a statement attesting to full compliance with the subpoena, and they have signaled they have not ruled out pursuing a criminal inquiry into the actions of either Ms. Bobb or Mr. Corcoran, according to two people briefed on the matter.The attestation was drafted by Mr. Corcoran, but Ms. Bobb added language to it to make it less ironclad a declaration before signing it, according to the people. She has retained the longtime criminal defense lawyer John Lauro, who declined to comment on the investigation.It is unclear whether the authorities have questioned Ms. Bobb yet or whether she has had discussions with Mr. Trump’s other lawyers about the degree to which she would remain bound by attorney-client privilege.Mr. Corcoran and Mr. Rowley did not respond to emails seeking comment.Mr. Corcoran, a former federal prosecutor and insurance lawyer, represented the former Trump aide Stephen K. Bannon in his recent trial for refusing to comply with a subpoena issued by the House committee investigating the Jan. 6 attack on the Capitol. In that case, Mr. Bannon claimed he believed he had immunity from testimony because of executive privilege; Mr. Trump later said he would not seek to invoke executive privilege for Mr. Bannon.Mr. Corcoran, the son of a former Republican congressman from Illinois, has told associates that he is the former president’s “main” lawyer and has insisted to colleagues that he does not need to retain his own counsel, as Ms. Bobb has.But several Trump associates have said privately that they believe Mr. Corcoran cannot continue in his role on the documents investigation. That view is shared by some of Mr. Trump’s advisers, who have suggested Mr. Corcoran needs to step away, in part because of his own potential legal exposure and in part because he has had little experience with criminal defense work beyond his stint as a federal prosecutor for the U.S. attorney in Washington more than two decades ago.Mr. Trump has at least 10 lawyers working on the main investigations he faces. Mr. Corcoran, Ms. Bobb and Mr. Kise are focused on the documents case, along with James M. Trusty, a former senior Justice Department official. Three lawyers on the team — Mr. Corcoran, Mr. Rowley and Timothy Parlatore — represent other clients who are witnesses in cases related to Mr. Trump’s efforts to stay in power.To the extent anyone is regarded as a quarterback of the documents and Jan. 6-related legal teams, it is Boris Epshteyn, a former campaign adviser and a graduate of the Georgetown University law school. Some aides tried to block his calls to Mr. Trump in 2020, according to former White House officials, but Mr. Epshteyn now works as an in-house counsel to Mr. Trump and speaks with him several times a day.Mr. Epshteyn played a key role coordinating efforts by a group of lawyers for and political allies of Mr. Trump immediately after the 2020 election to prevent Joseph R. Biden Jr. from becoming president. Because of that role, he has been asked to testify in the state investigation in Georgia into the efforts to reverse Mr. Biden’s victory there.Mr. Epshteyn’s phone was seized by the F.B.I. last week as part of the broad federal criminal inquiry into the attempts to overturn the election results and the Jan. 6 assault on the Capitol. That prompted alarm among some of Mr. Trump’s allies and advisers about him remaining in a position of authority on the legal team.It is not clear how much strategic direction and leadership Mr. Kise may provide. But he is joining a team defined by warring camps and disputes over legal issues.In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.Mr. Herschmann made clear in the emails that absent a court order precluding a witness from answering questions on the basis of executive privilege, which he had repeatedly implored them to seek, he would be forced to testify.“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.Mr. Epshteyn declined to respond to a request for comment.Nearly four weeks after Mr. Herschmann first asked for an instruction letter and for Mr. Trump’s lawyers to seek a court order invoking a privilege claim, the emails show that he received notification from the lawyers — in the early morning hours of the day he was scheduled to testify — that they had finally done as he asked.His testimony was postponed.Michael S. Schmidt More

    • 100 Shares99 Views

      in Elections

      Prosecutors Rest in Contempt Case Against Steve Bannon

      by

      The government, seeking to hold Mr. Bannon to account for defying a subpoena from Congress, wrapped up its case after calling just two witnesses.WASHINGTON — The prosecution rested its case on Wednesday in the trial of Stephen K. Bannon, a former top adviser to President Donald J. Trump, as government lawyers sought to show that Mr. Bannon had repeatedly ignored warnings that he risked facing criminal charges in flouting a subpoena.Mr. Bannon was indicted in November on two counts of contempt of Congress after he refused to provide information to the House committee investigating the Jan. 6 attack.The trial on Wednesday largely centered on the testimony of Kristin Amerling, the deputy staff director and chief counsel to the Jan. 6 committee, who offered a detailed accounting of the committee’s attempts to compel Mr. Bannon to testify last year.“There had been a number of public reports stating that Mr. Bannon had been in communication with White House officials, including former President Trump in the weeks leading up to the Jan. 6 events,” Ms. Amerling said. “We wanted to understand what he could tell us about the connection between any of these events.”Prosecutors continued to describe Mr. Bannon’s decision to stonewall the committee as a straightforward case of contempt. By declining to testify, Mr. Bannon not only “thumbed his nose” at the law, but he also may have withheld significant information about the coordinated effort to disrupt the certification of the 2020 election, Amanda Vaughn, a prosecutor, said.Key Revelations From the Jan. 6 HearingsCard 1 of 8Making a case against Trump. More

    • 113 Shares159 Views

      in Elections

      Stephen Bannon Agrees to Testify to Jan. 6 Panel

      by

      Stephen K. Bannon, the former Trump campaign manager and White House adviser, made the abrupt about-face after the former president authorized him to talk to investigators.WASHINGTON — With his criminal trial for contempt of Congress approaching, Stephen K. Bannon, an ally of former President Donald J. Trump’s who was involved in his plans to overturn the 2020 election, has informed the House committee investigating the Capitol attack that he is now willing to testify, according to two letters obtained by The New York Times.His decision is a remarkable about-face for Mr. Bannon, who until Saturday had been among the most obstinate and defiant of the committee’s potential witnesses. He had promised to turn the criminal case against him into the “misdemeanor from hell” for the Justice Department.But with the possibility of two years in jail and large fines looming on the horizon, Mr. Bannon has been authorized to testify by Mr. Trump, his lawyer told the committee late on Saturday in a letter, which was reported earlier by The Guardian.The former president had previously instructed Mr. Bannon and other associates not to cooperate with the panel, claiming that executive privilege — a president’s power to withhold certain internal executive branch information, especially confidential communications involving him or his top aides — compelled them to stay silent. But in recent days, as several witnesses have come forward to offer the House panel damning testimony about his conduct, Mr. Trump has grown frustrated that one of his fiercest defenders has not yet appeared before the committee, people close to him said.“Mr. Bannon is willing to, and indeed prefers, to testify at your public hearing,” Robert J. Costello, Mr. Bannon’s lawyer, wrote to Representative Bennie Thompson, Democrat of Mississippi and the chairman of the committee.Key Revelations From the Jan. 6 HearingsCard 1 of 7Making a case against Trump. More

    • 138 Shares129 Views

      in Elections

      Jan. 6 Panel Questions Cipollone on Pardons and Trump’s Election Claims

      by

      Pat A. Cipollone, the former White House counsel for President Donald J. Trump, appeared before the House committee investigating the Capitol attack for roughly eight hours on Friday.WASHINGTON — Pat A. Cipollone, who served as White House counsel for President Donald J. Trump, was asked detailed questions on Friday about pardons, false election fraud claims and the former president’s pressure campaign against Vice President Mike Pence, according to three people familiar with his testimony before the House committee investigating the Jan. 6 attack on the Capitol.The panel did not press him to either corroborate or contradict some specific details of explosive testimony by Cassidy Hutchinson, a former White House aide who captivated the country late last month with her account of an out-of-control president willing to embrace violence and stop at nothing to stay in power, the people said.During a roughly eight-hour interview conducted behind closed doors in the O’Neill House Office Building, the panel covered some of the same ground it did during an informal interview with Mr. Cipollone in April. In the session on Friday, which took place only after Mr. Cipollone was served with a subpoena, investigators focused mainly on Mr. Cipollone’s views on the events of Jan. 6 and generally did not ask about his views of other witnesses’ accounts.Mr. Cipollone, who fought against the most extreme plans to overturn the 2020 election but has long held that his direct conversations with Mr. Trump are protected by executive privilege and attorney-client privilege, invoked certain privileges in declining to answer some of the committee’s questions.Tim Mulvey, a spokesman for the panel, said the committee “received critical testimony on nearly every major topic in its investigation, reinforcing key points regarding Donald Trump’s misconduct and providing highly relevant new information that will play a central role in its upcoming hearings.”“This includes information demonstrating Donald Trump’s supreme dereliction of duty,” Mr. Mulvey said. “The testimony also corroborated key elements of Cassidy Hutchinson’s testimony.”The panel recorded Mr. Cipollone on video with potential plans to use clips of his testimony at upcoming hearings. Aides have begun strategizing about whether and where to adjust scripts to include key clips, one person said. The next hearing is scheduled for Tuesday.In the interview, Mr. Cipollone was asked about Mr. Trump’s false claims of a stolen election. The panel has asked similar questions of top Justice Department officials, White House lawyers and Trump campaign officials, who have testified that they did not agree with the effort to overturn the 2020 election.Mr. Cipollone also broke with Mr. Trump in response to questions about the former president’s pressure campaign against Mr. Pence, which included personal meetings, a profane phone call and even a post on Twitter attacking the vice president as rioters stormed the Capitol pledging to hang him, people familiar with the testimony said.Mr. Cipollone’s agreement to sit for an interview before the panel had prompted speculation that his testimony could either buttress or contradict the account of Ms. Hutchinson, who attributed some of the most damning statements about Mr. Trump’s behavior to Mr. Cipollone. For instance, she testified that Mr. Cipollone told her on the morning of Jan. 6 that Mr. Trump’s plan to accompany the mob to the Capitol would cause Trump officials to be “charged with every crime imaginable.”Two people familiar with Mr. Cipollone’s actions that day said he did not recall making that comment to Ms. Hutchinson. Those people said the committee was made aware before the interview that Mr. Cipollone would not confirm that conversation were he to be asked. He was not asked about that specific statement on Friday, according to people familiar with the questions.“Why are Pat Cipollone & his lawyers letting the J6 Committee get away with suborning Cassidy Hutchinson’s perjury?” Mr. Trump’s eldest son, Donald Trump Jr., who has also testified before the panel, wrote on Twitter on Saturday. “Only cowards let the Left bully them into sitting quietly instead of speaking up and telling the truth. Stop hiding on background, Pat. Grow a spine & go on record.”Mr. Mulvey said there was no “preinterview agreement to limit Cipollone’s testimony” and any suggestion otherwise was “completely false.”Among other subjects, Mr. Cipollone was asked in the interview about conversations in which presidential pardons were discussed.The committee did not press Mr. Cipollone to either corroborate or contradict some specific details of testimony by Cassidy Hutchinson, a former White House aide who appeared before the panel last month.Doug Mills/The New York TimesMs. Hutchinson has testified that on Jan. 7, the day after the assault on the Capitol, Mr. Trump wanted to promise pardons for those involved in the attack, but Mr. Cipollone argued to remove language making such a promise from remarks that the president was to deliver.She has also testified that members of Congress and others close to Mr. Trump sought pardons after the violence of Jan. 6.An adviser to Mr. Cipollone declined to comment on his appearance before the panel.“He was candid with the committee,” Representative Zoe Lofgren, Democrat of California and a member of the panel, said on CNN on Friday. “He was careful in his answers, and I believe that he was honest in his answers.”She added, “We gained some additional insight into the actual day, Jan. 6.”Ms. Lofgren said Mr. Cipollone did not contradict other witnesses. “There were things that he might not be present for or in some cases could not recall with precision,” she said.Mr. Cipollone’s testimony came after he reached a deal to testify before the panel, which had pressed him for weeks to cooperate and issued him a subpoena last month.Mr. Cipollone was a witness to key moments in Mr. Trump’s push to overturn the election results, including discussions about sending false letters to state officials about election fraud and seizing voting machines. He was also in direct contact with Mr. Trump on Jan. 6 as rioters stormed the Capitol.Mr. Trump has railed against Mr. Cipollone’s cooperation. On Thursday, he posted on his social media platform, Truth Social: “Why would a future President of the United States want to have candid and important conversations with his White House Counsel if he thought there was even a small chance that this person, essentially acting as a ‘lawyer’ for the Country, may someday be brought before a partisan and openly hostile Committee in Congress.” More