Even before he stepped foot in the Oval Office, Donald Trump was abusing the idea of executive privilege. In particular, former Trump White House officials have repeatedly refused to testify or produce documents on the theory that Trump maybe declare privileged conversations or documents, even though Trump has made no such claim. Information that had been regularly available in the past was hidden behind privilege. The officials refused to appear before the committees or hold regular briefings before Congress. At one point, Trump even tried to claim executive privilege over the census.
And now Trump continues to insist on a kind of previous executive privilege over documents and conversations he never moved to protect while in office. Trump tried to protect White House records around January 6 using this retroactive executive privilege. Mark Meadows stated that subsequent orders to the Trump White House were enough to prevent him from being tested. At one point, Trump’s claims of privilege were so extreme that a federal judge found it necessary to remind Trump that “presidents are not kings and plaintiff is not president.”
The scale of the secret battle being waged to maintain this privilege is unclear, because most of it appears to be happening under seal. Lawyers meet in closed rooms, presenting their cases to judges in hearings that are nothing more than numbered entries in the file,
One part of this battle was temporarily made visible when former Trump White House adviser Eric Herschmann received a grand jury subpoena in August. As Brandi Buchman reported Monday, Herschmann is known to have warned Trump in 2021 not to delete presidential records, telling him that failure to return the documents he had taken could lead to “serious legal charges.” reports focused on citation they suggest that the jury also wanted to speak to Herschmann about “events related to January 6”.
But the effort to get Herschmann to testify has become entangled with the ongoing fight for privilege. Herschmann is willing to testify. However, Trump’s lawyers are in court trying to assert privileges over the talks with Herschmann, including those that took place after Trump left office and Herschmann was no longer a Trump employee.
Herschmann, who was known to oppose many of the efforts to nullify the 2020 election, is just one of the people federal prosecutors would like to see testify. They are also seeking testimony from former White House counsel Pat Cipollone and Deputy White House counsel Patrick Philbin. Both Cipollone and Philbin reportedly appeared in front of the grand jury, but only after negotiating exceptions that would prevent them from being asked about the talks with Trump.
Just as Trump’s claims to have declassified documents (while refusing to name any documents that have been declassified) resulted in Judge Dearie’s rejection, Trump’s claims to having privileges without establishing topics or conversations that are specifically privileged are also generating frustration. ace The New York Times reported last week, even Herschmann is frustrated by his inability to get clear answers.
For weeks this summer, Herschmann tried to get specific guidance from Trump’s current lawyers on how to handle questions from prosecutors that raise issues of executive privilege or attorney-client privilege.
What Herschmann got was a mixture of “baffling answers” and advice that “amake sweeping claims of executive privilege” that would put everything off limits, no matter what the issue.
But there is a big flaw with all of Trump’s arguments in defense of his wall of privilege.
“The Supreme Court in the United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to protect wrongdoing. The courts held that Nixon’s alleged invocation of executive privilege was illegitimate, in part, for that reason.”
Who said that? The ultra-conservative Heritage Foundation said that in 2012, when they insisted that President Barack Obama could not use the privilege to hide details of the “Fast and Furious” operation. And that was a sitting president, dealing with an ongoing international incident.
What held with Nixon certainly holds with Trump. These are offender investigations Trump is trying to use a “radical claim of privilege” to hide all his attempts to nullify the election and his involvement in inciting violence on January 6. His “firewall” must have all the legal status of a stack of preschool blocks. .
But that is not how it is treated. And it could be this secret fight, held under seals of a different kind of privilege, that determines whether Trump takes the podium at the next Republican convention or watches it from jail.