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The news was the latest sign that the department, which has been criticized for months for moving too slowly to investigate Trump’s attempt to steal the election and instigate the mob that stormed the US Capitol, is moving quickly and broadening the scope implementation — though there is no indication when or even if the former president will be charged in the Justice Department investigation.
“Understanding what it means if the facts and the evidence are there and they decide not to prosecute — how do we call ourselves a nation of laws?” said Cheney, one of two Republicans on the panel.
CNN senior legal analyst Preet Bharara said the fact that Trump’s lawyers are already in contact with the investigation suggests they believe he may have some significant exposure down the line.
“Active engagement suggests to me that lawyers believe there is some danger here and should get involved sooner rather than later,” Bharara, a former U.S. attorney for the Southern District of New York, told CNN’s Wolf Blitzer. Bharara warned that the investigation could take a long time and that a decision “on whether or not to indict Donald Trump” could be made many months from now.
Learning what Trump was saying and thinking as his mob made its way to the US Capitol and during his earlier plans to overturn his election loss could help determine whether the former president acted with intent. corruption and risked criminal charges.
More immediately, the dialogue with Trump’s lawyers could also be the curtain call on a critical legal dispute over the extent to which Trump — as a former president — can claim executive privilege over conversations and advice he received while in office. office. Such a case could make it all the way to the Supreme Court and break new legal ground in itself, given that there is little litigation on the issue involving absentee presidents. Executive privilege is the custom whereby private conversations and advice given to a president can remain private, especially from Congress, under the doctrine of separation of powers.
Long legal battle
The potential legal battle that Trump’s often lurid privilege allegations may spark could push the Justice Department’s investigation into the middle of the former president’s potential 2024 campaign. That would risk yet another national political firestorm beyond many triggered by the 45th President.
But more broadly, the latest news on the Justice Department’s investigation shows that there is an aggressive criminal investigation that is limited to a former President of the United States — a historic milestone — after an administration that continues to tear down the guardrails of the democratic system even off site.
That doesn’t necessarily mean Trump will be impeached. A criminal investigation requires a much higher standard of proof than the House Select Committee, which has painted a damning picture of Trump’s actions in the face of the Capitol uprising. And Trump has made a lifetime of escaping legal scrapes and attempts at accountability. Only in his presidency was he freed from the Russia investigation. He was the first President to be impeached twice by the House, although he was not convicted in Senate trials or barred from future federal office.
But according to the new CNN report, Trump’s team warned him that there could be indictments stemming from the grand jury investigation. And sources say the former president has asked his advisers if he is in personal legal jeopardy.
New visibility into the aggressive investigation of the Department of Justice
Kimberly Welle, a professor at the University of Baltimore School of Law, told CNN’s Erin Burnett that contacts between Trump’s lawyers and prosecutors showed a legal turmoil over the scope of executive privilege.
“I think Donald Trump is going to lose this battle, but the fact that his lawyers are on it and telling him he better watch out, there could be charges, I think that’s very serious news for the former president, but very good news about democracy, the rule of law and the Constitution,” Wehle said.
The latest revelations about the grand jury probe bolster signs that the Justice Department is moving quickly and broadly to probe the insurgency after months of complaints — even from members of the House Select Committee — that it doesn’t appear to be as active.
This in turn raises the possibility that another significant period of Trump-induced national trauma could be ahead. The former President has already alleged that the Biden administration is weaponizing the Justice Department to go after his political enemies — an accusation many of his critics leveled against him while he was still president. Trump would be sure to react to any signs that he is the target of the investigation or the possible accusations of those around him, arguing that he is the victim of a politicized investigation. Given his dominance of supporters and his record of inciting violence, political tensions could run high.
All of this will heighten the dilemma that Attorney General Merrick Garland will face if the evidence from the criminal investigation suggests a prosecution is warranted. Impeaching a former President — especially a White House candidate again — would set off a political firestorm. This must raise the question of whether targeting Trump would be in the larger national interest outside of the criminal context. At the same time, the failure to prosecute a former President accused of helping to instigate a coup attempt could set an equally dangerous precedent and send a message to future errant Presidents.
Trump’s team discussed possible defense strategies
The most significant news so far about the Justice Department’s criminal investigation follows unmistakable signs of a comprehensive and accelerating investigation. The department called, for example, former White House counsel Pat Cipollone and former deputy counsel Patrick Philbin.
In the latest report by CNN’s Katelyn Polantz, Kara Scannell, Gabby Orr and Kristen Holmes, sources revealed that some members of Trump’s legal team have discussed potential defense strategies at least twice in recent months. This comes as they await developments not only in the Justice Department probe, but in a separate investigation by officials in Georgia into Trump’s efforts to overturn Biden’s 2020 electoral victory in the crucial state.
Trump has canvassed his lawyers about whether they really believe he will face formal charges, but has expressed skepticism that he will be charged, one of the sources familiar with the matter said.
The CNN team also reveals that Trump ignored advisors’ advice to avoid speaking with former and current aides who are involved in the House Select Committee investigation and could be drawn into the criminal investigation.
On the issue of executive privilege, historical precedent could work against the former President. During the Watergate scandal, then-President Richard Nixon claimed executive privilege to try to prevent the release of incriminating tapes. But in a ruling that could be important to Trump’s case, the Supreme Court said executive privilege could not be used to obstruct the administration of criminal justice.
The Jan. 6 House committee did not raise the issue of Cipollone’s reluctance to talk about certain conversations with Trump under executive privilege. It is racing against time as it is likely to be dismantled by pro-Trump Republicans in the House if control of the chamber changes after November’s midterm elections. But the Justice Department has the luxury of more time to wage a legal battle.
And the possibility of a prolonged investigation is one reason many observers believe Trump is leaning toward an early announcement of a 2024 presidential campaign, which would allow him to anger his supporters by arguing that the investigation is a politicized effort by the Biden administration to keep from reclaiming the White House.
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