The dispute revolves around allegations of executive privilege that prosecutors expect the former president to provide in order to protect some information from a federal grand jury as the criminal investigation deepens into the ranks of White House officials who interacted directly with Trump.
The Justice Department’s preemptive move is the clearest sign yet that federal investigators are turning toward Trump’s behavior as he tries to prevent a transfer of power to Joe Biden.
An Executive Court of Excellence battle would immediately put the Department of Justice investigation in a more aggressive position than the Mueller investigation — a major criminal investigation that went on for years with Trump while he was president. He was not ultimately charged.
Facing the franchise issue reflects the care the Department of Justice takes as it faces the unusual situation of investigating a former president over actions taken while he was in office. It could lead to one of the first major court battles over the separation of powers in the criminal investigation on January 6.
Pence’s former aides testify
Ahead of the final grand jury testimony, the plaintiffs, along with Short and Jacob’s attorneys, identified some questions they might avoid in order to get away from potential franchise issues, with the expectation that they could come back to these questions at a later time, seen by the matter he said.
Neither of them will answer questions about their direct interaction with Trump when they auditioned for the criminal investigation in recent weeks, according to two people familiar with the matter.
Short, Pence’s former chief of staff, and Jacob, his former chief adviser, were present at the January 4, 2021 Oval Office meeting, where Trump pressured Pence to agree to a plan presented by attorney John Eastman to prevent the election results from being certified.
Despite the franchise issues, witnesses spent hours answering questions for a grand jury about the pressure campaign against Pence, of which Trump was a part, while avoiding direct questions about the former president, according to people familiar with the matter.
Questions by prosecutors indicated that investigators were focusing on the role of Trump and others such as Eastman, Trump attorney Rudy Giuliani and others in the broader scheme to prevent election results from being certified and to organize a pool of fake voters that would keep Trump. He held office despite losing the election, according to what was briefed by the people.
The extent of the former president’s executive prerogative to withhold testimony in a criminal investigation remains unresolved, and Justice Department officials believe Trump is likely to try to confirm his allegations as he did in the House Select Committee’s investigation on Jan. 6.
It’s also clear, given hurdles with privilege and communication with other witnesses, that prosecutors are still in the early stages of examining any direct role for Trump. People briefed said prosecutors appear to have gone a long way in their investigation of Trump allies who were plotting a plan to keep him in office.
“Short” is represented by Emmett Flood, a prominent Washington attorney known as a staunch advocate of presidential privilege.
Flood and Jacob’s attorney declined to comment for this story. An attorney dealing with Trump’s franchise cases did not respond to inquiries from CNN Thursday.
Previously, courts have ruled against Trump’s efforts to protect his White House papers from being turned over to a House select committee.
The Biden administration largely chose not to confirm the franchise claims around January 6, making Trump’s assertions as a former president weaker than if he were still in office.
If another battle arises in court relating to the January 6 grand jury proceedings investigating Trump, officials overseeing the investigation believe that the Department of Justice has a strong potential to win such a fight,
Courts have generally held that allegations of executive privilege can be more easily removed in criminal investigations, than in congressional investigations.