(CNN) — Justice Department prosecutors are preparing for a legal battle to force former White House officials to testify about then-President Donald Trump’s conversations and actions on January 6, according to people with knowledge of the matter.
At issue is the fact of the assertions of executive privilege that prosecutors expect the former president to make to protect certain information from the federal grand jury, as the criminal investigation cuts deeper into the ranks of White House officials who interacted. directly with Trump.
The Justice Department’s preemptive move is the clearest sign yet that federal investigators are zeroing in on Trump’s conduct as he tried to prevent the transfer of power to Joe Biden.
A judicial fight for executive privilege would immediately put the Justice Department investigation in a more aggressive position than even the Mueller investigation, a years-long major criminal investigation into Trump while he was president for which he was ultimately not charged.
Attorney General Merrick Garland has made it clear in public statements that Trump is not off limits to the investigation because of his status as a former president. He has also stressed that there is an effort to “do this well”.
Grappling with the question of privilege reflects the care with which the Justice Department is handling the unusual situation of investigating a former president for actions taken while in office. And it could spark one of the first big court fights over the separation of powers in the Jan. 6 criminal investigation.
Statements from former Pence advisers
Trump’s attempt at secrecy emerged most recently in federal grand jury testimony by Marc Short and Greg Jacob, close associates of former Vice President Mike Pence.
Before their recent grand jury testimony, prosecutors, along with attorneys for Short and Jacob, outlined some questions to rule out to avoid potential privilege issues, with the expectation that they might return to those questions at a later date, they said. people informed about the matter.
Neither would answer questions about their direct interactions with Trump when they testified in the criminal investigation in recent weeks, according to two people familiar with the matter.
Short, Pence’s former chief of staff, and Jacob, his former top adviser, were present at an Oval Office meeting on January 4, 2021, in which Trump pressed Pence to go ahead with a plan put forth by the attorney. John Eastman to block certification of election results.
Despite issues of privilege, the witnesses spent hours answering grand jury questions about the Pence pressure campaign, of which Trump was a part, while avoiding direct questions about the former president, according to people briefed on the matter.
Prosecutors’ questions indicated that investigators are focusing on the role of Trump and others including Eastman, Trump’s attorney Rudy Giuliani and others in the larger scheme to block the certification of election results and to organizing a set of fake electors who would keep Trump in office even though he lost the election, according to people with knowledge of the matter.
Jacob and Short’s approach with the Justice Department so far is in line with what they did with the House select committee, according to one source, avoiding answering some questions about what Trump said around Jan. 6.
The extent of a former president’s executive privilege to shield his testimony in a criminal investigation remains unsettled law, and Justice Department officials believe Trump is likely to try to enforce it as he has in the select commission investigation. of the House of Representatives on January 6.
It’s also clear, given the hurdles over privilege and scope of other witnesses, that prosecutors are still in the early stages of examining any direct role for Trump. Prosecutors appear to be much further along in their investigation of Trump allies who were orchestrating the scheme to keep him in office, the people briefed said.
Short is represented by Emmet Flood, a prominent Washington attorney who is known as a strong advocate of presidential privilege.
Flood and Jacob’s attorney declined to comment for this story. An attorney handling privilege matters for Trump did not respond to questions from CNN on Thursday.
Courts have previously ruled against Trump’s efforts to protect his White House documents from being turned over to the House select committee.
The Biden administration has largely chosen not to assert privilege claims around Jan. 6, making Trump’s claims as a former president weaker than if he were still in office.
If another court fight related to the Jan. 6 jury proceedings investigating Trump materializes, officials overseeing the investigation believe the Justice Department has a strong chance of winning that fight.
In general, courts have found executive privilege claims to be more easily dismissed in criminal investigations than in congressional investigations.