Trump Privilege Claims Dropkicked In Every Court In DC, And Yet He Persisted
While Donald Trump is busy threatening to burn the country down over a supposedly impending indictment by Manhattan District Attorney Alvin Bragg, Special Counsel Jack Smith continues to bear down on him in the two federal grand juries empaneled to investigate the documents case and the January 6 inquiry. And this week there is action in both.
Yesterday we told you that Trump's bid to block his attorney Evan Corcoran from testifying before the grand jury in the documents case ran smack into a brick wall at the DC Circuit. The three judge panel gave the two sides 10 hours to brief their cases, before agreeing with US District Court Judge Beryl Howell that the special counsel had met the burden to pierce attorney-client privilege under the crime-fraud exception and ordering Trump's lawyer to hand over the documents and get his ass in to testify. Perhaps mindful that Trump's lawyers aren't known for their catlike reflexes — it did take them four full days to draft that emergency appeal of Judge Howell's Friday order — the special counsel told Corcoran to start talking toot sweet. And as we type, that's exactly what he's doing. So if Trump was still scratching his ass and wondering if he ought to give it one more try with the Supreme Court, it's too late. Womp womp.
Corcoran, who is based in Baltimore, has been in DC a lot lately. In fact he was there yesterday to argue that Mike Pence can't testify before the January 6 grand jury about all the times Trump tried to get him to do a coup because of executive privilege. Even before this week's asskicking, Trump's lawyers' record was somewhat less than impressive, particularly when claiming privilege for his aides. Something about fomenting a coup in DC makes the judges who work there kinda testy. But Trump's lawyers Jim Trusty, John Rowley, and our pal Corky, the dream team that lucked onto Judge Aileen Cannon's docket before getting unceremoniously dropkicked at the Eleventh Circuit, are getting a celebrity assist from Emmet Flood — the eminent political lawyer and former White House counsel who represented Trump in the Mueller Investigation, but Flood turned him down flat when Trump tried to hire him after leaving the White House.
Flood is the author of the newest theory as to why the former vice president can't can't testify, and it is that Mike Pence was doing very serious senator stuff when he presided over Congress on January 6, 2021, so he's immune from process under the Speech or Debate Clause. His claim is that he cannot be questioned about anything related to his role as president of the Senate, including all the times Trump tried to get Pence to use his position as president of the Senate to overthrow the government. And whether or not that one works, mad props for creativity, bro.
One problem with this theory, as independent journalist Marcy Wheeler has pointed out, is that Pence has already talked about many of the events in question in his own book, excerpts of which appeared months ago in the Wall Street Journal. So you can hardly claim executive privilege over the meetings with Trump on January 4 and 5 when you've written this:
At that I turned to the president, who was distracted, and said, “Mr. President, did you hear that? Even your lawyer doesn’t think I have the authority to return electoral votes.” The president nodded. As Mr. Eastman struggled to explain, the president replied, “I like the other thing better,” presumably meaning that I could simply reject electoral votes.
On Jan. 5, I got an urgent call that the president was asking to see me in the Oval Office. The president’s lawyers, including Mr. Eastman, were now requesting that I simply reject the electors. I later learned that Mr. Eastman had conceded to my general counsel that rejecting electoral votes was a bad idea and any attempt to do so would be quickly overturned by a unanimous Supreme Court. This guy didn’t even believe what he was telling the president.
Or more accurately, you can if you've got the balls to say it with a straight face, but a court might well find that the privilege has already been waived. On the other hand, if you're betting that Special Counsel Smith wants to wrap this thing up by fall at the latest and you're laboring under a delusion that you might get to be president if you don't actively participate in sending your former boss to jail, then maybe a delay is as good as a win. You roll the dice and hope Chief Justice Roberts does you a solid and stays the order long enough that Smith gets bored and wanders off. And maybe that's an option when you're not the world's worst client so you can hire a really fucking great lawyer.
We'll find out soon, since Flood, Corcoran, Trusty, Rowley, and Timothy Parlatore were all in federal court in DC yesterday making their case before Chief Judge James Boasberg, an Obama appointee who rotated in to replace Judge Howell as chief and will now hear these privilege disputes.
But on her way out the door, Judge Howell had the best mic drop ever. In addition to telling Corcoran to spill it, ABC reports that she rejected Trump's claims of privilege as to Mark Meadows, Stephen Miller, comms flack Dan Scavino, former Director of National Intelligence John Ratcliffe, former national security adviser Robert O'Brien, former acting DHS head Ken Cuccinelli, loyalty enforcer Johnny McEntee, and Trump's body man Nick Luna.
ABC says Trump plans to appeal. But, assuming his lawyers manage to get around to it in timely fashion, they already lost at the appellate level when they tried to block testimony by former White House Counsel Pat Cipollone and his deputy Pat Philbin, as well as by Pence's aides Greg Jacob and Marc Short. So, make of that one what you will.
Gonna be a lotta white guys in that courthouse next week. You love to see it.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.