The Justice Department’s preemptive move is the clearest sign yet that federal investigators are focusing on Trump’s conduct as he sought to prevent a handover to Joe Biden.
A court fight over executive privilege would immediately put the Justice Department’s investigation into a more aggressive posture than even the Mueller probe — a major multi-year criminal investigation into Trump while he was President. He was ultimately not charged. Attorney General Merrick Garland made it clear in public remarks that Trump is not beyond the scope of the investigation because of his status as a former president. He also emphasized that they make sure to “do it right.”
The handling of the privilege issue reflects the care the Justice Department is taking as it deals with the unusual situation of investigating a former president for actions taken while in office. And it could spark one of the first major legal battles over the separation of powers in the Jan. 6 criminal investigation.

Former Pence aides testify

Trump’s effort to maintain secrecy most recently appeared in the federal grand jury testimony of Mark Short and Greg Jacobs, close associates of former Vice President Mike Pence. Before their recent court filing, prosecutors, along with attorneys for Short and Jacob, outlined some questions they would avoid to avoid potential privilege issues, with the expectation that they could return to those questions later, people informed about the matter he said. None answered 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 Jacobs, his former chief adviser, were both present at an Oval Office meeting on January 4, 2021, where Trump pressed Pence to follow a plan presented by the lawyer John Eastman to prevent the certification of election results. Despite the privilege issues, the witnesses spent hours answering grand jury questions about the campaign to pressure Pence, which Trump was involved in, while avoiding direct questions about the former president, according to people briefed on the matter. The questions asked by prosecutors indicated that investigators are zeroing in on the role of Trump and others such as Eastman, Trump lawyer Rudy Giuliani and others in the larger scheme to prevent the certification of election results and organize a series of fake voters to hold Trump in office despite losing the election, the people said. 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 scope of a former president’s executive privilege to shield testimony in a criminal investigation remains unclear in law, and Justice Department officials believe Trump is likely to try to corroborate his claims as he did in the Jan. 6 House committee investigation. Also clear, given hurdles over privilege and access to other witnesses, is that prosecutors are still in the early stages of examining any direct Trump role. Prosecutors appear to be well ahead in their investigation into Trump allies who orchestrated the scheme to keep him in power, the people briefed said. Short is represented by Emmet Flood, a prominent Washington lawyer who is known to be a staunch defender of presidential privileges. Flood and Jacob’s attorney declined to comment for this story. A lawyer handling privilege issues for Trump did not respond to questions from CNN on Thursday. Courts have previously ruled against Trump’s efforts to protect White House documents from being turned over to the House Select Committee. The Biden administration largely chose not to claim benefits around Jan. 6, making Trump’s claims as a former president weaker than if he were still in office.
If there is another legal battle related to the Jan. 6 grand jury proceeding investigating Trump, officials overseeing the probe believe the Justice Department has a good chance of winning such a fight. Courts generally find that executive privilege claims are more easily cleared up in criminal investigations than in congressional investigations.