Before he even stepped into the Oval Office, Donald Trump was abusing the idea of executive privilege. In particular, former officials in the Trump White House have repeatedly refused to testify or produce documents under the theory that Trump might declare conversations or documents privileged, even though Trump hasn’t made any such claim. Information that had regularly been available in the past was hidden behind privilege. Officials refused to appear before committees or to make regular briefings to Congress. At one point, Trump even tried to claim executive privilege over the census.
And now Trump is continuing to insist on a kind of former executive privilege over documents and conversations he never moved to protect while in office. Trump tried to shield White House records around Jan. 6 using this retro-executive privilege. Mark Meadows declared that post-White House orders from Trump were enough to keep him from testifying. At one point, Trump’s privilege claims were so extreme that a federal judge felt it necessary to remind Trump that “presidents are not kings, and plaintiff is not president.”
The scale of the secret battle being fought to keep this privilege in place isn’t clear, because most of it appears to be happening under seal. Attorneys are meaning in closed chambers, making their cases before judges in hearings that are no more than numbered entries on the docket,
A portion of this battle temporarily became visible when former Trump White House adviser Eric Herschmann was issued a grand jury subpoena in August. As Brandi Buchman reported on Monday, Herschmann is known to have warned Trump in 2021 against taking away presidential records, and that failing to return any documents he had taken could result in “serious legal charges.” Reports centering on the subpeona suggest that the jury also wanted to talk to Herschmann about “events surrounding January 6.”
But the effort to get Herschmann to testify became entangled with the ongoing fight over privilege. Herschmann is willing to testify. However, Trump’s attorneys are in court trying to exert privilege over conversations with Herschmann — including those that took place after Trump was out of office and Herschmann was no longer employed by Trump.
Herschmann, who was known to oppose many of the efforts to overturn the 2020 election, is just one of the people that federal prosecutors would like to see testify. They’re also seeking testimony from former White House counsel Pat Cipollone, deputy White House counsel Patrick Philbin. Both Cipollone and Philbin have reportedly appeared in front of the grand jury, but only after negotiating carve outs that would prevent them from being asked about conversations with Trump.
Just as Trump’s claims to have declassified documents, while refusing to name any documents that have been declassified, resulted in push back from Judge Dearie, Trump’s claims to have privilege without setting out topics or conversations that are specifically privileged is also resulting in frustration. As The New York Times reported last week, even Herschmann is frustrated by his inability to get clear answers.
For weeks this summer, Mr. Herschmann tried to get specific guidance from Mr. Trump’s current lawyers on how to handle questions from prosecutors that raise issues of executive privilege or attorney-client privilege.
What Herschmann got was a mixture of “perplexing answers” and advice that he “assert sweeping claims of executive privilege” that would put everything off limits, no matter the subject.
But there’s one big flaw with all of Trump’s arguments in defense of his privilege wall.
“The Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason.”
Who said that? The ultra-conservative Heritage Foundation said that in 2012, when they were insisting that President Barrack Obama could not use privilege to hide details of the “Fast and Furious” operation. And that was a sitting president, who was dealing with a still in progress international incident.
What held in Nixon certainly holds with Trump. These are criminal investigations. Trump is attempting to use a “sweeping claim of privilege” to hide all of his attempts to overturn the election and his involvement with inciting violence on Jan. 6. His “firewall” should be given all the legal consideration of a stack of pre-school blocks.
But that’s not how it’s being treated. And it could be this secret fight, held under seals of a different kind of privilege, that determines whether Trump climbs onto the podium at the next GOP convention, or watches it from jail.