Government

DOJ Declines To Provide Cover For Trump Officials Hoping To Blow Off January 6 Commission

Sucks when you can't just shout EXECUTIVE PRIVILEGE and flip off Congress anymore, right?

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(Photo by Justin Sullivan/Getty Images)

Jeffrey Rosen, call your lawyer. Because Attorney General Merrick Garland just signaled that the Justice Department is not going to run interference for former Acting AG Rosen or any other Trump official trying to stonewall congressional investigations of the January 6 insurrection.

“Department lawyers, including those who have since left, are obligated to protect nonpublic information they learned in the course of their work,” wrote career DOJ lawyer Bradley Weinsheimer in a letter sent to multiple former Trump officials and first revealed by the New York Times.

But, noting that the “extraordinary events in this matter constitute exceptional circumstances warranting an accommodation to Congress” and the “exceptional situation in which the congressional need for information outweighs the Executive Branch’s interest in maintaining confidentiality,” the letter went on to authorize “unrestricted testimony … irrespective of potential privilege.”

Back in May, Rosen refused to answer congress’s questions about his communications with Donald Trump.

“I cannot tell you, consistent with my obligations today, about my conversations with the president one way or the other,” he told Rep. Gerry Connolly.

“You’re saying this was a privileged communication?” Connolly demanded.

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In fact, Rosen was not invoking executive privilege. He was continuing the Trump administration practice of stonewalling Congress by gesturing vaguely in the direction of privilege without actually invoking it.

“It’s a long standing policy [at] the Department of Justice not to comment on conversations that the Attorney General had with the president of the United States for confidential reasons that rounded in the coequal branch,” then AG Jeff Sessions said in June 2017 of his refusal to answer senatorial questions, adding that “I’m not claiming executive privilege because that’s the president’s power and I have no power there.”

Compare to Rosen’s insistence on in May 2021 that, “When you ask me about communications with the president, I as a lawyer don’t get to make the decision on whether I can reveal private conversations. Other people make that decision, and I’ve been asked today to stick to within the ground rules that I have to abide by.”

He refused to explain exactly who set those “ground rules,” promising to get back to Rep. Connolly on that one. Which was fun while it lasted, but now Merrick Garland is running the Justice Department.

And while it’s not settled law that presidents can abrogate executive privilege for their successors, the era of invoking the possibility of privilege — not to mention some fantastical blanket of privilege which covers all communications within the entire executive branch and extends to Trump’s conversations with civilian luminaries such as Sidney Powell — is over.

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Neither the Times nor Politico, which confirmed the story, have published the letters in their entirety, so we don’t know for sure who the recipients might be. But as Just Security editor Ryan Goodman points out, we can make a pretty good guess who was on Weinsheimer’s pen pal list by looking at House Oversight Chair Carolyn Maloney’s June 15 wishlist of interviewees.

In addition to Rosen, who is reported to have fended off multiple attempts to force him to intervene in state election certifications, and Jeffrey Clark, who schemed to get Rosen fired so he could take his job and ratf*ck the election, the committee would like to speak to White House Chief of Staff Mark Meadows. This is hardly surprising, since Meadows repeatedly tried to get the DOJ to investigate multiple crackpot theories, including one that involved Barack Obama and the Italian prime minister stealing the election via military satellites.

Rounding out Maloney’s list are former DOJ officials Richard Donoghue and Patrick Hovakimian, as well as BJ Pak, the former US Attorney from Georgia booted out on Trump’s orders for his failure to investigate nonsensical claims of vote fraud in that state. And if these guys want to assert executive privilege, they’re not going to have the firepower of the DOJ to back them up.

So let’s see if Trump ponies up the cash to wage a legal battle over the persistence of un-asserted executive privilege after the holder has left office. Good thing that guy always pays his debts, right?

Trump officials can testify in Jan. 6 inquiries, Justice Dept. says. [NYT]
DOJ: Former Trump officials can testify about Jan. 6 Capitol attack [Politico]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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