Former President Donald Trump is scheduled to be arraigned in New York on Tuesday on charges related to hush money payments made during his 2016 campaign, posing the most pressing legal task of his life. However, while much of the focus will be on the courtroom in lower Manhattan, investigations will continue from Atlanta to Washington, highlighting the wide range of danger he faces as he tries to reclaim the presidency.
The vulnerability Trump faces in Washington alone has become clear over the past month as judges have rejected the Trump team’s attempts to block grand jury testimony from people who were or are still close to him and who could potentially offer direct insight into key events. These witnesses include his lawyer and his former vice president.
The decisions ordering advisers and aides to testify do not imply that the Justice Department is about to file charges, nor do they ensure that prosecutors can obtain evidence that will be helpful in a possible prosecution. Nevertheless, they represent a significant, behind-closed-doors victory for the government as it looks into possible criminal mishandling of classified documents at Trump’s Florida mansion, potential obstruction of that investigation, and attempts by Trump and his allies to overturn the outcome of the 2020 presidential election.
The Atlanta district attorney is still looking into efforts by Trump and his allies to overturn his Georgia loss in the election
“I do think when you’re talking about an attempted insurrection and the kinds of issues that we’re talking about there, there’s going to be a lot of arguments on DOJ’s side” to get the testimony, said Randall Eliason, a former federal prosecutor and a George Washington University law professor.
The Atlanta district attorney is still looking into efforts by Trump and his allies to overturn his Georgia loss in the election. In February, a special grand jury recommended that local authorities file charges after stating that it thought “one or more witnesses” had lied. The former president is not one of those who could have lied because he never appeared before the special grand jury. However, the report does not rule out the chance of additional accusations, and the case still presents unique difficulties for Trump, in part because of his extremely visible actions in Georgia.
The number of sealed disputes over the admissibility of grand jury evidence is uncommon overall but may be appropriate for highly significant investigations like the one into a former president. It also contrasts with the previous special counsel investigation into Trump, which Robert Mueller and his team of prosecutors conducted while he was president and in which they tried to ascertain whether Trump’s 2016 campaign had colluded with Russia to sway the election. Ty Cobb, a lawyer working inside the White House at the time, organized voluntary depositions of White House employees without subpoenas in the hope that their collaboration would speed up the investigation’s conclusion.
Trump was shielded from that probe by both the authority of his office and Justice Department legal opinions
“If I could figure out a way to cooperate and still preserve executive privilege, it would speed things up, which in my judgment … was imperative to the president and the country,” Cobb said in a recent interview. “We were able to accelerate getting them all of the information. (Ambien) ”
Trump was shielded from that probe by both the authority of his office and Justice Department legal opinions that state that a president cannot be indicted while in office. Trump no longer serves as president, so he has lost that protection, increasing the risk of his illegal activity coming to light. In addition, Trump’s attorneys have objected repeatedly, frequently in vain, as prosecutors have tried to question individuals close to him, whether to better understand Trump’s mental state and potential defences or to gather potentially damaging testimony.
Possibly the most striking instance occurred last month when the D.C. federal court’s chief judge ordered that M. Evan Corcoran, Trump’s attorney, be required to provide additional grand jury evidence in the Mar-a-Lago investigation. He had invoked the attorney-client privilege in an earlier appearance before the grand jury in declining to answer more questions, but prosecutors pressed for more testimony.
They referenced the so-called crime-fraud exception to the attorney-client privilege
They referenced the so-called crime-fraud exception to the attorney-client privilege, which permits prosecutors to require evidence from an attorney if they can persuade a judge that a client used legal services to further a crime. Corcoran appeared in court a week after U.S. District Judge Beryl Howell decreed that he must appear before the grand jury once more. Another incident occurred last week when a different federal judge, James Boasberg, decided that former Vice President Mike Pence had to testify in a Justice Department special counsel investigation into attempts to rig the election.
Although Boasberg gave Pence a victory by accepting his lawyers’ claims that, for constitutional reasons, he could not be questioned about his actions on January 6, 2021, when a mob of Trump’s supporters stormed the U.S. Capitol as Republican Pence was presided over a joint session of Congress to certify Democrat Joe Biden’s victory, the decision rejected the Trump team’s arguments of executive privilege.
Court has also ordered testimony from other former Trump aides
A Trump spokesman did not respond to a request for comment on this story but responded to the ruling in the Pence matter in a statement saying that the Justice Department “is continuously stepping far outside the standard norms in attempting to destroy the long accepted, long-held, Constitutionally based standards of attorney-client privilege and executive privilege.”
Recently, a court has also ordered testimony from other former Trump aides, including Stephen Miller and former national security adviser Robert O’Brien, despite the Trump campaign’s claims of executive privilege. Insofar as it demonstrates that “there’s a there there” about the investigations, Eliason said, the ability of Justice Department prosecutors to persuade judges that there is a basis to secure the evidence is important. However, he advised against interpreting it too broadly given that the bar for winning an argument over presidential privilege or attorney-client is lower than the standard required to succeed in a criminal case at trial.
“It’s a far cry from being able to prove guilt beyond a reasonable doubt in a contested trial,” Eliason said. “It would be quite a leap to go from there and be able to say that they’ve got a criminal case locked up.”