The DOJ is not the final arbiter on who does and who doesn’t have executive privilege regarding testimony before the January 6th Commission, first being televised this Tuesday morning. The courts make the ultimate decision. But DOJ certainly does take the first position on whether the privilege applies and would be the entity that takes the matter to court (or arrest a person) who does not appear before the committee.
Thus, it is a significant blow, perhaps a devastating blow, that he New York Times  obtained a letter in which the DOJ advised members of the Trump administration that they can give unrestricted testimony to the Committee. They do not need to listen to Trump’s demands, at least with respect to DOJ’s position. Trump can take the matter to court on his own behalf (where it would likely be expedited), the witness can take the matter to court, and, as always, witnesses retain their Fifth Amendment Right against self-incrimination.
Trump disagrees, as noted by the New York Times :
“The decision runs counter to the views of former President Donald J. Trump, who has argued that his decisions and deliberations are protected by executive privilege. It also sets up a potential court battle if Mr. Trump sues in a bid to block any testimony.”
Everything we know about Trump says that he most certainly will sue to block testimony. Everything we know about Trump is that he’ll do anything to keep this committee from discovering what really happened that day, which brings up some interesting questions.
Trump’s supporters assert that executive privilege applies to all presidential communications. We are at a loss to explain this position. In courts, no privilege can be asserted to further a crime, whether attorney-client, doctor-patient, clergy, it doesn’t matter. If the discussion is about how to commit a crime or what to do after a crime, there is no privilege. If the committee has evidence that a crime was committed, in part because of what Trump said, it is unlikely that a privilege would apply. Additionally, in a court, all privileges can be waived, intentionally or unintentionally, by telling a third person (any third person except that person’s lawyer) about the discussions.
It is already settled law that executive privilege doesn’t apply in “extraordinary circumstances.” (Which, we assume, covers attempts to further a crime.) According to Bradley Weinsheimer, a career official at DOJ, “The extraordinary events in this matter constitute exceptional circumstances warranting an accommodation to Congress.”
Mathew Miller, an MSNBC legal analyst says: “A really important move by DOJ to start walking back the previous administration’s overly broad executive privilege claims. Keep it coming.”
Yes, it is important for the witnesses to know that if they refuse to testify by asserting executive privilege, they will be fighting DOJ and the FBI (with powers to arrest a person) rather than having DOJ litigating the matter to help block their testimony.
This is a big blow to Trump, but and it is the correct one.
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