Trump indicates he will try to use executive privilege to prevent investigators from getting info

7October 2021

A source familiar with the former President’s legal strategy confirms to CNN that an attorney for Trump sent letters to some of the subpoena targets, informing them of his plan to defend executive privilege. The letters were first reported by Politico.
“Executive privilege will be defended, not just on behalf of President Trump and his administration, but also on behalf of the Office of the President of the United States and the future of our nation,” Taylor Budowich, director of communications for Save America and Trump, said in a statement.
The letter, which was reviewed by the Washington Post, was sent to former Trump adviser Dan Scavino, former Trump White House chief of staff Mark Meadows, former adviser Steve Bannon and Kash Patel, a former chief of staff to then-Acting Secretary of Defense Christopher Miller.
While the letter instructed the subpoena targets to not comply with congressional investigators, according to the Post, it is up to each witness to decide whether to follow Trump’s direction.
Patel, in a statement to CNN on Thursday, would not confirm whether he had received a letter from Trump’s attorney or how he plans to respond to the subpoena, but said: “I will continue to tell the American people the truth about January 6, and I am putting our country and freedoms first through my Fight with Kash initiative.”
Rep. Pete Aguilar, a member of the select panel, told CNN’s Wolf Blitzer that it is not Trump’s place to decide what information is covered by executive privilege.
“The former President, it is not his role to claim privilege. That is the current occupant in the White House,” Aguilar said Thursday. “But, more broadly, this should not surprise anyone. The former President has done everything he can to try to get in the way of this investigation, including having Sen. (Mitch) McConnell go into his caucus and oppose the bipartisan commission that we all would’ve wanted,” he said in reference to Senate Republicans’ previous block of a bill that had sought to create an independent inquiry to investigate the deadly riot.
The California Democrat added that the truth “is what we want, and clearly (Trump) has a problem with us getting to the truth, so that is why he is mounting a continued pressure campaign on these individuals who he is encouraging not cooperate.”

Privilege games

So far, the question of how assertions of privilege will play out has resulted in a game of chicken.
This summer, Trump and his legal team asked the Biden White House to assert privilege when former acting Attorney General Jeffrey Rosen and other senior former Justice Department officials provided testimony to the Senate Judiciary Committee about events before the January 6 attack. But Trump didn’t seek to intervene when Biden waived privilege and the current Justice Department leaders cleared the way for the testimony of the former officials.
Instead, Trump’s attorney Doug Collins suggested to Fox News that Trump would take a different approach when it came to White House officials — a strategy he may be using in the current round of subpoenas. Collins said in a letter this summer that the former President might claim privilege later, if the House pushed too far.
Here's what happens if a congressional subpoena is ignored (and what it means for the January 6 committee)
Yet some attorneys representing witnesses in the January 6 inquiry say that by letting Rosen and others testify without a privilege battle, Trump’s ground for shielding information has already receded.
Another option is for Trump’s allies to assert their Fifth Amendment right not to incriminate themselves. They could also, on their own, refuse to testify on Capitol Hill, going to court or daring the committee to use the Justice Department or judges to enforce the subpoena.
When he left the administration, Trump identified several top advisers to work with the National Archives, which holds his presidential papers. Post-Watergate-era law allows for former Presidents to have some say over what they want to keep protected in their presidential records and also allows the Biden White House Counsel’s Office to weigh in.
But the Archives have been slow process records and it’s not yet clear what topics will be off limits and where the Biden White House and Trump will differ.
Previously, Trump blocked former officials from his White House from testifying on Capitol Hill by claiming they had an absolute immunity. The subpoenas were then derailed by court cases.
Trump hasn’t been clear whether he’d try the same tactic again — or whether assertions of privilege may come up question by question.
But without the power of the Justice Department or the White House behind him, it’s uncertain how the privilege fight will now play out.
This story has been updated with additional information Thursday.

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