Donald Trump: Recent subpoenas suggest the DOJ’s investigation could target the former president directly

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These developments, which are the clearest indication yet that Trump is under investigation, suggest that efforts to find out the truth will survive even if Republicans win the House of Representatives and shut down the special committee this fall. Contrary to the House investigation, the Justice Department could file criminal charges against former Trump administration officials if it chooses to do so.

It follows that the department is trying to pursue claims of executive privileges, which Trump is likely to use to thwart the investigation. It also suggests the department is moving forward with zeal after months of complaints from members of the House Select Committee and others that it did not act quickly enough.

Evidence of a widening Justice Department investigation came amid fresh signs of the political power of Trump’s false claims of voter fraud. Candidates who touted his falsehoods won the Republican primary in Arizona and Michigan on Tuesday and may be able to influence future elections if they beat Democratic rivals in November.
And the investigation is also unfolding amid a widening controversy over missing texts on government phones used by the Department of Defense and US Secret Service around January 6, 2021. CNN, for example, reported Wednesday that the Secret Service may be temporarily disabling text messages on employees’ cellphones while the agency scrambles to respond to concerns that messages may have been deleted. The disappearance of messages could be accidental, but given the explosive events after the election, it is suspicious.

Both Cipollone and Philbin have been subpoenaed, sources familiar with the matter told CNN. Both were close to Trump in the tense days after the 2020 election and in the run-up to the Capitol riot at the White House. The department sought her testimony after the grand jury also heard from two key members of former Vice President Mike Pence’s brain trust, his former chief of staff Marc Short and legal counsel Greg Jacob.

Cipollone was also a key figure at the televised House of Representatives committee hearings, during which he highlighted the potential illegality of Trump’s actions and his refusal to intervene to quell the Capitol riot. The committee’s key witness, Cassidy Hutchinson, an aide to former White House Chief of Staff Mark Meadows, testified that Cipollone warned staffers could be charged with myriad crimes if they let Trump into the Capitol on Jan. 6.

In his own testimony before the committee, Cipollone, out of privilege, declined to reveal details of his personal conversations with the then-president. But with its longer schedule and resources, the Justice Department may have more power to overcome this obstacle, either in negotiations with Cipollone or through the courts.

Trump could be the focus of investigators

Until it was revealed that Cipollone and Philbin and Pence’s two key aides were wanted for grand jury testimony, it was not possible to determine if the department was directly investigating the ex-president’s role in disrupting the peaceful transfer of power. But given the close proximity of the two White House attorneys in particular to the then President, the line of inquiry now seems much clearer.

“They don’t call the White House Counsel, the Assistant White House Counsel, especially after the testimony they gave to the 1/6 Committee, unless you’re looking directly and directly at Donald Trump,” he said Preet Bharara. a former US Attorney for the Southern District of New York, CNN’s Jake Tapper said on Wednesday’s The Lead.

Cipollone and Philbin could give investigators insight into Trump’s statements, actions and state of mind during one of the most dangerous days in American history. This could be important in determining if he had corrupt intent to break the law. Cipollone’s testimony could also pose a threat to Trump if restrictions on executive privileges are lifted given his reputation for integrity and telling the truth.

Among other revelations, Cipollone told the House Selection Committee in closed-door videotaped testimony that he believed Trump should have conceded the election and that Pence deserved the President’s Medal of Freedom for his efforts to win the election in the United States to overthrow Congress.

A lawsuit is brewing

However, any appearance by Cipollone would likely have to await a court battle for executive privilege, which allows a president to seek private advice on important issues and cases and expect to be shielded from congressional inquiries under the Separation of Powers doctrine.

CNN’s Pamela Brown reported Tuesday that Cipollone and his attorneys were discussing with Justice Department officials about appearing before the grand jury and handling executive privilege issues. Trump has repeatedly made enormous claims to executive privileges that extend to advisors and communications far beyond conventional understanding of their scope — and he is likely to do so again.

A court battle over Cipollone’s testimony could potentially lead all the way to the Supreme Court. During the Watergate scandal, then-President Richard Nixon asserted executive privileges to try to prevent the surrender of incriminating tapes. But in a ruling that could be significant in Trump’s case, the Supreme Court said executive privileges cannot be used to thwart the application of criminal justice. Additionally, the courts do not have a long track record of deciding how far a former president can go with executive privileges, so any litigation between Trump and the Justice Department could break significant new ground.

The Justice Department is suing former Trump adviser Peter Navarro over emails from his personal account

The January 6 committee of the House of Representatives did not consider the issue of Cipollone’s reluctance to discuss certain talks with Trump. It is ticking against a clock as it is likely to be dissolved by pro-Trump Republicans in the House of Representatives if control of the chamber changes after November’s midterm elections. But the Justice Department has the luxury of having more time to conduct a lawsuit.

“I’m optimistic that the Justice Department can win this,” former federal prosecutor Shan Wu said on CNN’s The Situation Room on Wednesday, but warned it could take months to complete a court case.

That means a Justice Department investigation could continue at least well into next year. So even after the congressional investigation expires, there will be at least one place where Trump could be held accountable.

This possibility of a lengthy investigation is one reason many observers believe Trump is leaning toward an early announcement of a 2024 presidential campaign. This would make it easier for the former president to argue that the probe is a politicized attempt by the Biden administration to arm the Justice Department to try and stop him from retaking the White House.

Garland’s dilemma

However, evidence for investigation does not constitute proof of guilt. While the revelations from the televised House of Representatives hearings were shocking and showed the ex-president’s involvement in the Jan. 6 coup attempt was greater than previously known, Attorney General Merrick Garland would still weigh in on the decision on whether to prosecute the ex face a profound dilemma -President.

The House Committee hearings painted a damning picture, but they also picked from testimonies and available evidence and did not include cross-examination that could poke holes in testimony.

A criminal trial requires a heavier burden of proof than a congressional investigation. The severity of the prosecution of a former president suggests that Garland would need to be particularly confident in getting a conviction. A criminal trial against Trump would also raise questions as to whether such a trial, which could shake the United States to the core and set precedents for future former presidents, is truly in the national interest, however the evidence is destroyed.

Conversely, the introduction of a principle whereby a president could evade legal responsibility for attempting to overturn an election could be equally ruinous for America’s democratic system and freedoms.

In a way, the January 6 Committee and its success in penetrating deep into the ex-president’s west wing and uncovering the election-stealing conspiracy could ease Garland’s decision-making process. While Trump will certainly claim he is a political victim if indicted, the mountain of evidence – including chilling testimonies and graphic videos of his mob attacking the Capitol – serves to prepare the public and shape its perception of what is real really happened. This may slightly defuse allegations that any prosecution of the ex-president is a purely political exercise.

Still, every day the signs point to a possible indictment of Trump — or a controversial decision not to prosecute him — is a step closer to a time of extraordinary national trauma.

Pamela Brown, Katelyn Polantz and Jeremy Herb contributed to this story.

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