Donal Trump faces uphill fight on executive privilege in DOJ probe

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Former U.S. President Donald Trump gives the keynote address.

Donald Trump’s camp has yet to say whether he’ll try to use executive privilege to disrupt the Justice Department’s grand jury investigation into attempts to overturn the 2020 election. But if he does, it could be a very short fight.

A series of court rulings prompted by Trump’s effort to stymie the House Jan. 6 select committee investigating the Jan. 6, 2021, attack on the Capitol sharply rejected Trump’s bid to wield the power as a former president. In fact, the Supreme Court agreed that Trump’s effort to assert privilege would have failed even if he were the sitting president, effectively granting the committee access to Trump’s White House papers.

Those rulings could carry significant ramifications as Trump confronts a growing grand jury investigation into his efforts to seize a second term he didn’t win, including testimony last month by former Vice President Mike Pence’s chief of staff, Marc Short, and Pence’s counsel, Greg Jacob. On Tuesday, ABC reported that Trump’s former White House counsel, Pat Cipollone, had received a grand jury subpoena. Cipollone’s deputy, Patrick Philbin, was also summoned to the grand jury, a development first reported Wednesday by CNN and confirmed to POLITICO by a person familiar with the situation.

Short, Jacob, and Cipollone testified to the Jan. 6 select committee but negotiated strict terms to avoid discussing their direct interactions with Trump — a nod to the disputed possibility that such communications could be protected by executive privilege. But it’s unlikely that such claims would pass muster in a criminal probe.

“There is no way that any court would say they didn’t have to testify to conversations with President Trump in a grand jury investigation — a criminal investigation arising out of that conduct,” said Neil Eggleston, who served as White House counsel to President Barack Obama and represented President Bill Clinton in several executive privilege fights. “There’s no doubt if this got to a court, it would hold that the department is entitled to the information. … I think it’s a no-brainer.”