Government

Team Trump Graciously Agrees To Allow Witnesses It No Longer Controls To Testify About Jan. 6

Notes from the Mar-a-Lago nuthouse.

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(Photo by Win McNamee/Getty Images)

Donald Trump’s legal team does not lack for chutzpah.

After the Justice Department refused to invoke executive privilege for former executive branch employees subpoenaed in the January 6 investigation, Trump’s goon squad fired off a nastygram to witnesses threatening to get biblical if congress seeks to probe further.

“Please be advised that the Department’s purported waiver and authorization are unlawful, and that President Trump continues to assert that the non-public information the Committees seek is and should be protected from disclosure by the executive privilege,” huffed former Georgia congressman Doug Collins, who now represents Trump.

Note that this letter to former acting Attorney General Jeffrey Rosen and the five other witnesses requested last week by the Oversight Committee does not contain an invocation of privilege. In regular Trumpland fashion, his henchmen vaguely gesture in the direction of executive privilege while making preposterously overbroad claims about presidential secrecy covering every conversation in the executive branch, even extending to conversations with outside advisors such as Steve Bannon and Sidney Powell. They never actually invoke it — much less define it — because then they’d have to defend the claim.

“I’m not claiming executive privilege because that’s the president’s power and I have no power there,” said then Attorney General Jeff Sessions in June of 2017, as he stonewalled congress, refusing to answer questions about his conversation with the president.

Rosen himself made similar non-assertions of privilege back in March, telling congress, “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.”

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Which is a nice way to have your privilege cake and eat it, too!

In his letter, Collins goes so far as to quote the Supreme Court’s holding in Nixon v. Administrator of General Services, crowing that “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.” Never mind that the Court forced Nixon to turn over everything the DOJ asked for back in 1977. Here, the privilege has never been invoked at all — vague handwaving while mumbling about the great and powerful unitary executive doesn’t count —  and it’s not clear that Donald Trump has the right to do so when he is no longer the president.

It would be one thing if Trump had argued that a particular conversation was off limits, rather than sticking two middle fingers in the air and simply refusing to cooperate with congressional oversight for four straight years. But he didn’t, and now it’s probably too late.

Perhaps sensing the weakness of the former president’s position, Collins is not seeking to block testimony by Rosen and the other former DOJ employees requested by congress. But he is stomping his feet and threatening throw a major tantrum if the Committee subpoenas anyone else.

Nonetheless, to avoid further distraction and without in any way otherwise waiving the executive privilege associated with the matters the Committees are purporting to investigate, President Trump will agree not to seek judicial intervention to prevent your testimony or the testimony of the five other former Department officials (Richard P. Donoghue, Patrick Hovakimian, Byung J. “Bjay” Pak, Bobby L. Christine, and Jeffrey B. Clark) who have already received letters from the Department similar to the July 26, 2021 letter you received, so long as the committees do not seek privileged information from any other Trump administration officials or advisors. If the committees do seek such information, however, we will take all necessary and appropriate steps, on President Trump’s behalf, to defend the Office of the Presidency.

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Which is adorable! Threatening to go apeshit on a witness if the committee calls any other witnesses is just peak Trump. As if Rosen et al have an iota of authority or influence over congressional committees controlled by Democrats.

Meanwhile, ABC just broke the news that Jeffrey Clark literally tried to get the DOJ to cite nonexistent evidence of fraud and order the state of Georgia to allow the legislature to award the state’s electoral votes to Trump, despite the will of the voters.

“The Department of Justice is investigating various irregularities in the 2020 election for President of the United States,” Clark’s draft letter said. “The Department will update you as we are able on investigatory progress, but at this time we have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.”

And Clark, whom Trump was only prevented from installing as acting AG when his entire legal team threatened to resign, proposed an elegant solution to the problem he’d invented out of whole cloth: Why not stage a legislative coup?

“While the Department of Justice believe[s] the Governor of Georgia should immediately call a special session to consider this important and urgent matter, if he declines to do so, we share with you our view that the Georgia General Assembly has implied authority under the Constitution of the United States to call itself into special session for [t]he limited purpose of considering issues pertaining to the appointment of Presidential Electors.”

No doubt the Committee will be very interested in discussing it with him, as well as Donoghue, who responded “There is no chance that I would sign this letter or anything remotely like this.”

If Collins and the rest of the Trump Derp Squad are going to let these witnesses testify without a fight, they’ve clearly conceded the entire field. Or perhaps there’s something so awful that they’d rather let Democrats have this and save their fire power for whatever bodies they’ve got buried under Melania’s spiffy new Rose Garden.

With this crew, it’s probably both.

Letter: Trump legal team not trying to block testimony of former DOJ officials [Politico]
Rosen Letter [via Just Security]
DOJ officials rejected colleague’s request to intervene in Georgia’s election certification: Emails [ABC]

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

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