The DOJ breached Trump’s privilege wall on January 6 in its investigation, delving into the former president’s inner circle


The Justice Department is asking a federal judge to compel the two top lawyers in Donald Trump’s White House counsel’s office to testify about their conversations with the former president, as it tries to overcome the firewall of privilege that Trump has used to avoid scrutiny of his actions. on Jan. 6, 2021, according to three people familiar with the investigation.

The move to compel additional testimony from former White House Counsel Pat Cipollone and Deputy White House Counsel Patrick Philbin is part of a secret court filing last week. Trump has fought to keep former advisers from testifying about some of the conversations before a criminal grand jury, citing executive and attorney-client privilege to keep the information confidential or slow down criminal investigators.

But the Justice Department has successfully obtained answers from senior vice president advisers Greg Jacob and Marc Short in significant court victories over the past three weeks, allowing the criminal investigation to reach further into Trump’s inner circle.

Jacob’s Oct. 6 testimony, which has not been previously reported, is the first time that the confidentiality Trump tried to maintain around the West Wing has been drilled into the criminal probe following a court battle after the 2020 election. A week after Jacobs spoke to the grand jury again, Short had his own grand jury appearance date, CNN reported.

The four men previously declined to answer questions about their advice and interactions with Trump when they testified in the secret criminal investigation in recent months. Trump lost court battles involving Jacob and Short last month before the chief judge of the U.S. Circuit Court of Appeals in Washington.

Attorneys for the men the DOJ is seeking to compel declined to comment for this story or did not respond to requests for comment. Cipollone and Philbin did not respond to requests for comment. A spokeswoman for the Department of Justice also declined to comment.

The four men have expressed willingness to be as cooperative as required by law, leaving Trump’s team to handle the fight over some details of the investigation, the sources said.

The dispute over Cipollone and Philbin’s testimony could be important to investigators in the long run, given how close the pair were to Trump before and during the Capitol incident. Prosecutors are likely to have heard about direct conversations the grand jury had with the then-president.

The dispute – which involves grand jury proceedings conducted under seal in court – could also lead to several other court battles that will be crucial for prosecutors as they work to bring criminal charges related to Trump’s post-election efforts.

The witnesses subpoenaed by the federal grand jury, including former White House officials Mark Meadows, Eric Herschmann, Dan Scavino, Stephen Miller and Boris Epshteyn, former campaign advisers, may also decline to describe their conversations with Trump or the advice they gave after the election. multiple sources familiar with the investigation say.

Trump and his allies have used claims of confidentiality (both executive privilege and attorney-client privilege) with mixed results in various legal spats surrounding the former president. These include the Jan. 6 federal criminal investigation, Mar-a-Lago’s federal criminal investigation documents, the Fulton County Georgia election meddling investigation, and the Jan. 6 House Select Committee investigation. Some of the privilege arguments Trump has raised have never been resolved in federal court, and some of the fights could end up in the Supreme Court.

Trump spokesman Taylor Budowich criticized the “armed” Justice Department in a statement and called the probe into the former president a “witch hunt.”

According to sources, the Justice Department won a trial judge’s order in late September requiring Jacob and Short to testify in response to questions from Trump’s team in an effort to claim presidential and attorney-client confidentiality.

The sealed court case, which stemmed from the work of the grand jury, was before DC District Court Chief Judge Beryl Howell. Howell refused to halt Jacob and Short’s testimony while Trump’s team appealed, a source said.

The Trump team, meanwhile, took days to respond to Howell’s loss in court. The Justice Department set an expedited subpoena date for Jacob, leaving him scheduled to appear before a grand jury on Oct. 6, according to multiple sources.

The D.C. Circuit Court of Appeals is considering legal arguments from Trump’s defense attorneys and the Justice Department about the ability to make claims of executive and attorney-client privilege.

How that’s resolved — by the appeals court or even the Supreme Court, if Trump goes that far — could have important implications for the Jan. 6 criminal investigation, and for several witnesses who may refuse to share some of what they know. Among Trump’s claims of privilege.

Among a large group of former top Trump officials, Jacob has been one of the most vocal critics of the then-president’s actions after the election, particularly the pressure he and his campaign lawyer, John Eastman, tried to put on the then-vice president. To block Mike Pence’s certification of presidential votes.

He has been a fierce critic of Jacob Eastman, who is also of interest to prosecutors, since Eastman tried to convince Pence’s office that only the vice president could override the vote. At the time, the right-wing lawyer told Eastman that he was a “snake in the ear” of the president, and that while Trump supporters stormed the Capitol on January 6, 2021, “thanks to your bulls, we are now under siege.”

Jacobs added to the parade of star witnesses at public House select committee hearings this summer, speaking openly of his disgust with what he saw inside the White House complex from his senior administration.

“There is hardly any more un-American idea that a person would elect an American president, and then, in 230 years of uninterrupted historical practice, the vice president had no such authority,” Jacobs testified in July.

But what Jacob and Short knew about Trump’s conversations, they wouldn’t tell the House or the grand jury until this month.

During a House Select Committee hearing, Cipollone answered many questions about what happened inside the West Wing on Jan. 6, but declined to describe communications between him and Trump.

Cipollone and Philbin’s roles as White House counsel raise complicated legal questions about whether Trump can claim confidentiality over legal advice given to him, as well as whether a former president can invoke executive privilege to release criminal investigators.

President Joe Biden has repeatedly refused to assert executive privilege over the January 6 disclosure, essentially leaving Trump’s fight against the Justice Department.

Although the courts will look at each situation individually, history is not on Trump’s side. Federal prosecutors investigating former presidents Bill Clinton and Richard Nixon were able to overcome White House counsel’s assertions of attorney-client privilege, as well as assertions of executive privilege, to allow the grand jury to hear information that had been preserved.