US courts ruling in favor of justice department
turns legal tide on Trump
The ex-president’s supporters will no longer be able
to avoid testifying before grand juries in Washington DC and Georgia
Peter Stone
in Washington
Tue 29 Nov
2022 10.00 GMT
As pate of
major court rulings rejecting claims of executive privilege and other arguments
by Donald Trump and his top allies are boosting investigations by the US
justice department (DoJ) and a special Georgia grand jury into whether the
former US president broke laws as he sought to overturn the 2020 election
results.
Former
prosecutors say the upshot of these court rulings is that key Trump backers and
ex-administration lawyers – such as ex-chief of staff Mark Meadows and legal
adviser John Eastman – can no longer stave off testifying before grand juries
in DC and Georgia. They are wanted for questioning about their knowledge of –
or active roles in – Trump’s crusade to stop Joe Biden from taking office by
leveling false charges of fraud.
Due to a
number of court decisions, Meadows, Eastman, Senator Lindsey Graham and others
must testify before a special Georgia grand jury working with the Fulton county
district attorney focused on the intense drive by Trump and top loyalists to
pressure the Georgia secretary of state and other officials to thwart Biden’s
victory there.
Similarly,
court rulings have meant that top Trump lawyers such as former White House
counsel Pat Cipollone, who opposed Trump’s zealous drive to overturn the 2020
election, had to testify without invoking executive privilege before a DC grand
jury investigating Trump’s efforts to block Congress from certifying Biden’s
election victory.
On another
legal front, some high level courts have ruled adversely for Trump regarding
the hundreds of classified documents he took to his Florida resort Mar-a-Lago
when he left office, thus helping an inquiry into whether he broke laws by
holding onto papers that should have been sent to the National Archives.
Obtaining this testimony is a critical step ... before
state and federal prosecutors determine whether the former president should be
indicted
Michael Zeldin
“Trump’s
multipronged efforts to keep former advisers from testifying or providing
documents to federal and state grand juries, as well as the January 6
committee, has met with repeated failure as judge after judge has rejected his
legal arguments,” ex-justice department prosecutor Michael Zeldin told the
Guardian. “Obtaining this testimony is a critical step, perhaps the last step,
before state and federal prosecutors determine whether the former president
should be indicted … It allows prosecutors for the first time to question these
witnesses about their direct conversations with the former president.”
Other
ex-justice lawyers agree that Trump’s legal plight has now grown due to the key
court rulings.
“Favorable
rulings by judges on issues like executive privilege and the crime-fraud
exception to the attorney-client privilege bode well for agencies investigating
Trump,” said Barbara McQuade, a former US attorney for eastern Michigan. “Legal
challenges may create delay, but on the merits, with rare exception, judges are
consistently ruling against him.”
Although
Trump has been irked by the spate of court rulings against him and his allies,
experts point out that they have included decisions from typically conservative
courts, as well as ones with more liberal leanings
Former
federal prosecutor Dennis Aftergut, for instance, said that: “Just last month,
the 11th circuit court of appeals, one of the country’s most conservative
federal courts, delivered key rulings in both the Fulton county and DoJ Trump
investigations.”
Specifically,
the court in separate rulings gave a green light to “DoJ criminal lawyers to
review the seized, classified documents that Trump took to Mar-a-Lago,
reversing renegade district court judge Aileen Cannon’s freeze-in-place order”,
Aftergut said.
In the
other ruling, the court held that Graham “couldn’t hide behind the
constitution’s ‘speech and debate’ clause to avoid testifying before the
Atlanta grand jury”, Aftergut noted.
“The speech
and debate clause,” he pointed out, “only affords immunities from testifying about
matters relating to congressional speeches and duties. That dog didn’t hunt
here.”
The irony is that the new momentum has been spurred by
lawsuits that Trump and his key loyalists filed as they’ve sought to block
subpoenas for their testimony and documents
Dennis Aftergut
Soon after
these rulings, the supreme court left both orders in place. “It’s enough to
make an old prosecutor with stubborn faith in the courts proud,” Aftergut said.
Separately,
federal court judge David Carter, who issued a scathing decision earlier this
year that implicated Trump and Eastman in a conspiracy to overturn the 2020
election, last month ruled that Eastman had to turn over 33 documents to the
House January 6 panel including a number that the judge ruled were exempt from
attorney-client privilege because they involved a crime or an attempted crime.
Ex-justice
lawyers say that a number of the recent court rulings should prove helpful to
the special counsel Jack Smith, who attorney general Merrick Garland recently
tapped to oversee both DoJ’s investigation into Trump’s retention of sensitive
documents post presidency and the inquiry into his efforts to stop Biden from
taking office.
True to
form, Trump didn’t waste any time attacking the new special counsel.
“I have
been going through this for six years – for six years I have been going through
this, and I am not going to go through it any more,” Trump told Fox News
Digital in an interview the same day Smith was appointed. “And I hope the
Republicans have the courage to fight this.”
Trump’s
predictable pique notwithstanding, ex-prosecutors note that the court rulings
that are proving beneficial to federal and state inquiries have largely come in
response to lawsuits filed by Trump and key allies.
“The irony
is that the new momentum has been spurred by lawsuits that Trump and his key
loyalists filed as they’ve sought to block subpoenas for their testimony and
documents,” Aftergut said.
The result,
he added, is that multiple court rulings “are bound to have heartened those
investigating Trump”.
What’s
more, two lengthy reports in November by the Brookings Institution and Just
Security that focused, respectively, on the Fulton county probe, and DoJ’s
inquiry into Trump’s stashing of classified documents at Mar-a-Lago, presented
strong evidence about the mounting legal threats Trump faces.
Now some
former prosecutors sound bullish that charges against Trump involving one or
more of the federal and state investigations are coming.
“I think
Trump is likely to be charged in Georgia and in the documents case,” Michael
Bromwich, an ex inspector general at DoJ, told the Guardian. “I’ll be
interested to see which happens first.”
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