Biden and DOJ’s Spiteful Ploy Boomerangs: How Politics Destroys Privilege

By: James Trusty

During the pre-indictment period in which I was one of President Trump’s lawyers, there was a considerable amount of then-sealed litigation over the Special Counsel Office’s (“SCO”) insatiable search for incriminating evidence. We regularly found ourselves fighting against prosecutors providing ex parte information to the Court in support of their singular claims that Donald J. Trump did not have the same legal privileges as almost anyone else in the history of our country. One of the more maddening moments during these battles was when a U.S. District Court judge chastised me for not “addressing the facts,” when all of the pertinent facts were hidden from the president’s lawyers. Make no mistake, the hostility towards President Trump and his counsel led to the historic diminishing of important rights, and now that the Biden administration is being dragged before Congress to discuss its inner workings, the chickens are beginning to come home to roost.

The privilege destruction game was well played by SCO, particularly with the overt assistance of the bench. When it came to Executive Privilege claims, the pair came up with procedural and practical barriers from examining the Court’s historic rulings. SCO would subpoena a witness from the President’s inner circle of advisors. If there was not a literal paper trail of the former President asking the witness to assert Executive Privilege, the Court would find the Privilege—which is designed to protect communications between the President and his advisors—was somehow waived. There was no legal precedent for this game of documentary “gotcha,” but it became the unreviewable law of the land.

Worse still was the tactical game played by SCO and an enabling bench to prevent any appeal. The process became a maddening loop of gamesmanship. The subpoenaed witness would try to assert Executive Privilege with regards to certain communications with the President. The judge would take in “evidence” from SCO that we could not review, and the judge would promptly announce that the witness has no privilege to claim. We would appeal the ruling to the appellate court, while SCO would hurriedly present the witness to the grand jury. By the time the Circuit was ready to entertain our appeal, SCO would successfully claim the matter is moot, as the witness already testified. In short, SCO and the District Court made historic rulings while purposefully shielding the decision from us, and more importantly, from any appellate review. This manipulative process helped create the dire need for the Supreme Court to re-establish the sanctity of communications between a president and his senior advisors.

The horrible starting point for this judicial activism, however, was the Biden Administration’s announcement that it was not willing to assert Executive Privilege on behalf of the Trump Administration. As the January 6 and Mar-a-Lago investigations were heating up, President Biden quietly issued a decision that Executive Privilege could not be validly asserted by his predecessor. Even at that exact moment, it was clear that a spiteful, or at least politicized, mindset was about to forever imperil the privilege—if successor presidents could and would simply obliterate a former president’s ability to consult and rely upon advisors with confidentiality, then there simply was no ability to rely on that privilege in the first place. Presidents facing the most significant and challenging decisions anyone could ever face would know that every word is “on the record.”

Attorney Client privilege claims met a similar fate. One of my colleagues was forced to turn over notes from his conversations with President Trump and the same judge who ruled repeatedly on Executive Privilege determined that the “Crime Fraud” exception to the Attorney Client Privilege allowed SCO to review and use the majority of the communications between President Trump and his lawyer relating to documents at Mar-a-Lago. While the Crime Fraud Exception existed before this investigation, it is an uncommon avenue to break through the long-protected realm of client consultations and the Court’s elimination of that protection was once again accompanied by one-sided presentations of “evidence” by prosecutors bent on bending rules. When another one of my colleagues was compelled to testify in the grand jury about our efforts to locate any other sensitive documents, the SCO attorney asked about four dozen questions to which the obvious answer was an assertion of the privilege. At one point, in front of the grand jury, the prosecutor challenged President Trump’s cooperation by asking, “why doesn’t he waive attorney client privilege?” This highly unethical moment may have been one of the reasons why SCO pivoted to south Florida for the indictment after using a DC grand jury (and judges) for many months.

To be clear, the destruction of these privileges had important results. The Mar-a-Lago indictment was heavily sprinkled with communications between the President and his lawyer—information that never should have been possessed by SCO, much less highlighted in an indictment. Similarly, the January 6 indictment included a good number of comments made by Vice President Pence to the President, which again should never have seen daylight. In defending the elimination of Executive Privilege, the Biden DOJ had the temerity to claim that the consultation with V.P Pence was made in the context of Pence being President of the Senate, as if President Trump’s right hand during a crisis had suddenly sprouted a “I’m in the Legislative Branch” hat to negate the longstanding privilege within the executive branch. Weaponized tactics yield ludicrous arguments, I guess.

This week Jill Biden’s advisor, Nelson Bernal, defied an interview request from Rep. Comer’s committee looking into the coverup of President Biden’s cognitive failings. He will undoubtedly soon receive a subpoena, and the current administration has announced that Executive Privilege will not apply. Soon, the same U.S. District Court will be faced with the unintended consequence of lawfare – is Executive Privilege effectively dead? The answer to that question is a bad one no matter which party prevails: either the lust for destroying President Trump ensnares all presidents facing investigation or the D.C. District Court will engage in mental backflips to somehow distinguish and re-establish the privilege’s availability for Biden cronies (only). Once again, it may turn out that the Supreme Court may be needed to re-establish the vitality of Executive Privilege for presidents who, thanks to the Biden Administration’s vindictive move, worry about their successors. Lawfare certainly backfired at the ballot box, and now it is jeopardizing important protections that ALL presidents should maintain.