Judge asks DOJ whether she should reveal how Trump has been preventing testimony from former aides

On Wednesday, The New York Times reported on efforts to force two former Trump lawyers—Pat Cipollone and Patrick Philbin—to testify. Trump has claimed that both attorney-client privilege and executive privilege mean that Cipollone and Philbin don’t need to appear. The DOJ has argued that, as the law makes clear, privilege claims cannot be used to cover up a crime. In this case, both Cipollone and Philbin are known to have been directly involved in organizing slates of false electors who could be put forward on Jan. 6 as an excuse to halt the compiling of electoral votes.

The fight over these two attorneys is just one of many times that Trump has tried to block an appearance before the grand jury. Last week, a panel of federal judges turned down an attempt by Trump to block testimony from Marc Short, who was chief of staff for Mike Pence.

In September, 40 subpoenas were issued to former Trump officials, aides, and advisors in one of the clearest signals that the Department of Justice was closing in on how Trump’s efforts to overturn the 2020 election led to the violence of Jan. 6—and how that effort involved a whole host of potential crimes. Those subpoenas included former Trump speechwriter Stephen Miller, campaign strategist Mike Roman, Trump attorney Boris Epshteyn, social media director Dan Scavino, former police commissioner turned election fraud conspiracist Bernard Kerik, and former Trump chief of staff Mark Meadows.

Trump has tried to block the appearance of all these officials, generally using arguments of executive privilege. In fact, the cases that are making their way through the courts now are not those related to the September subpoenas, but a group of officials, including Short, whose subpoenas went out back in June. As Politico reports, it’s been a four-month effort to bring those officials in front of the jury, with Trump filing one appeal after another in an effort to prevent their testimony.

Hours after the court ruled that Trump could not block Short’s testimony, the former Pence chief of staff had his say before the jury and went home. But that’s just one name on a long list, and dealing with Trump’s efforts to prevent former associates from testifying is seriously slowing the pace of the proceedings.

Both Politico and The New York Times have asked Chief Judge Howell to unseal documents related to what is being called “Trump’s secret battle” to prevent the grand jury from hearing from his former aides. Judge Howell has now asked the Department of Justice for their opinion on whether Trump’s meddling should be made public.

In such efforts to block testimony, Trump has consistently lost when it comes to the official results in court. However, his actions have often so slowed processes that by the time the final appeal was put down, the value of testimony or documents was so reduced that Trump’s “loss” is questionable. Trump has become the exemplar for how unlimited money and an unlimited stream of unscrupulous lawyers can keep anything in court perpetually, even when there is no real justification. Appeal. Lose. Appeal. Lose. Appeal. Lose. Change the basis of the appeal and start over. With weeks or months passing between each step, Trump can lose every case and never take a scratch. 

These efforts reveal an obvious weakness in the legal system that can be easily exploited. So far, there doesn’t appear to be any effort to address this weakness.

However, Howell—like “special master” Judge Raymond Dearie in the documents case—is taking action to move things along more quickly. In a Sept. 28 ruling, she dismissed efforts by Trump to delay any hearings until after he had exhausted his appeals based on executive privilege. Howell ruled that hearings would continue, even as Trump tried to defend his all-encompassing view on privilege. 

Will it help move things along if more information on Trump’s interference with the grand jury becomes public? Probably not. It’s not as if Trump can be shamed. But it would provide some greater insight into just how Trump has been moving to prevent testimony, and what kinds of claims he is making. That could be interesting, and it might even help the next prosecutor and the next judge in dealing with Trump’s infinite bag o’ monkey wrenches.

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