Donald Trump’s court losses have freed prosecutors to put before a grand jury members of his inner White House circle who were in the room for critical showdowns in the former president’s frantic push to overturn Joe Biden’s 2020 election victory.
(Bloomberg) — Donald Trump’s court losses have freed prosecutors to put before a grand jury members of his inner White House circle who were in the room for critical showdowns in the former president’s frantic push to overturn Joe Biden’s 2020 election victory.
Stephen Miller, a former top aide to Trump, was spotted this week entering the grand jury room at the federal courthouse in Washington. So was Trump’s Director of National Intelligence John Ratcliffe, ABC News reported. Former Vice President Mike Pence and Chief of Staff Mark Meadows, among others, are also slated to follow after Trump failed to persuade judges to block their testimony.
The witnesses at the heart of Trump’s executive privilege fights, who once occupied top administration posts, are poised to take grand jurors inside the White House during tense exchanges after the election and in the weeks leading up to the Jan. 6 US Capitol attack.
A special congressional committee found the witnesses Trump sought to block were present for key events that warranted criminal investigation. These included Oval Office clashes over a proposal to seize voting machines, Trump’s plan to install a sympathetic acting US attorney general, and a pressure campaign urging Pence to disrupt the election certification by Congress based on slates of fake electors.
The court orders in Trump’s subpoena fights remain sealed, but he likely failed thanks to a Watergate-era US Supreme Court decision that makes it difficult for presidents to override prosecutors’ demands for information, said Emily Berman, a law professor at University of Houston Law Center and expert on separation-of-powers issues.
“As long as they make the showing that the evidence is necessary and they can’t get it elsewhere, then that’s going to overcome executive privilege,” Berman said.
Key Witnesses
The full scope of potential crimes under investigation by Justice Department Special Counsel Jack Smith aren’t public. The Jan. 6 congressional committee proposed a range of felony offenses for the department to explore, including obstructing Congress, conspiring to defraud the US, making false statements, and inciting or aiding an insurrection.
The fight over Pence’s grand jury subpoena isn’t over; Trump is appealing his loss and on Friday asked the court to immediately intervene to block the testimony. The former president’s lawyers so far have failed to persuade the US Court of Appeals for the DC Circuit to intervene in earlier executive privilege cases.
In March, the appeals court cleared the way for Miller’s April 11 appearance; he spent roughly six hours at court. ABC reported that the order allowed prosecutors to call at least seven other former officials and aides: Meadows, Dan Scavino, National Security Advisor Robert O’Brien, Ken Cuccinelli, Nick Luna, and John McEntee.
Trump’s team lost fights last year over testimony from former White House lawyers Pat Cipollone and Pat Philbin and two of Pence’s advisers, Marc Short and Greg Jacob, according to earlier media reports. ABC recently reported that Trump’s lawyers are trying to stop Smith’s team from using the testimony from Cipollone, Philbin, and former White House lawyer Eric Herschmann.
The former officials involved in Trump’s executive privilege fights or their attorneys declined to comment or didn’t respond. A spokesperson for Smith’s office declined to comment.
Critical moments
The Jan. 6 congressional committee’s report offers a timeline of post-election events and dramatic confrontations that the subpoenaed ex-officials could describe firsthand to the grand jury.
Cipollone, Herschmann, and O’Brien were among officials who “forcefully” pushed back on a proposal floated by Trump’s far-right allies to seize voting machines. O’Brien phoned into that meeting to dispute there was evidence of foreign interference or fraud involving the machines. Cuccinelli joined a later discussion rebuffing Trump on the voting machines; CNN reported he went before the grand jury on April 4.
When senior Justice Department officials threatened to resign if Trump appointed his ally Jeffrey Clark as acting attorney general, Cipollone, Philbin, and Herschmann were there. Short and Jacob joined Pence and Trump in the Oval Office as conservative legal scholar John Eastman presented a widely-panned theory that the vice president could interfere with the election certification; Pence refused to do so.
On the morning of Jan. 6, Trump had what the report described as a “heated” phone call with Pence. Meadows, Miller, Herschmann, and Trump’s former personal assistant Nick Luna — who said Trump called Pence a “wimp” — were in the room.
Meadows and Scavino were with Trump as the Capitol attack unfolded that afternoon. Both men were held in contempt for defying a subpoena to testify before Congress; the Justice Department declined to prosecute.
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