Witness Testimony Helps Prosecutors Advance Trump Election Case

April 14, 2023 in International

Without fanfare, the Justice Department’s investigation into former President Donald Trump’s attempts to overturn the 2020 election is approaching an important milestone.

After nearly nine months of behind-the-scenes clashes, Trump’s lawyers have largely lost their battle to limit testimony from some of his closest aides to a federal grand jury. The decisions, in a string of related cases, represent an almost total failure by Trump to constrain the reach of the inquiry and have strengthened the position of Jack Smith, the special counsel overseeing the investigation, as he builds an accounting of the former president’s efforts to retain power after his defeat at the polls.

Having lost their challenges to grand jury subpoenas and largely failed to limit the scope of their testimony with assertions of executive and attorney-client privilege, a last group of aides is now being forced to answer questions.

On Tuesday, it was Stephen Miller, an adviser and top speechwriter for Trump, who showed up in U.S. District Court in Washington and spent several hours in front of the grand jury. On Thursday, it was John Ratcliffe, the former director of national intelligence. The process could culminate near the end of this month with an appearance by former Vice President Mike Pence.

While questions linger over pending appeals and potential efforts by some of the witnesses to delay things further by invoking the Fifth Amendment, the developments suggest that Smith is close to finishing the fact-finding phase of his work and is moving closer to a decision about seeking charges against Trump and others.

There are no clear indications about when Smith might decide about charges in the case, but he faces pressure on several fronts to keep the process moving.

The political season could be a consideration: The 2024 presidential race is heating up, with Trump still regarded as the front-runner for the Republican nomination, and the first debate of the GOP primary season has been scheduled for August.

On the legal front, the looming decision by a district attorney in Georgia, Fani Willis, on whether to seek indictment of Trump on charges related to his efforts to overturn his election loss has placed added pressure on Smith, who must decide whether allowing another prosecutor to go first with similar charges could complicate any prosecution he pursues.

“The speed of the Georgia state investigation increases the pressure on Jack Smith to move with alacrity and to get his witnesses before the federal grand jury now,” said John P. Fishwick Jr., a Barack Obama appointee who served as the U.S. attorney for the Western District of Virginia from 2015 to 2017. “Once the state indictment comes down, it can really bog down the DOJ investigation.”

Among those who have worked with him, Smith is seen as a diligent manager bent on collecting the information needed to make a decision while remaining cognizant of the time pressures and the highly partisan atmosphere in which he is operating.

In his first and only public comments — a statement emailed to reporters shortly after his appointment in November — he vowed that the pace of his Trump investigations would “not pause or flag,” noting that he would “move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”

Smith is also overseeing the parallel investigation into Trump’s handling of classified information after leaving office and whether the former president obstructed government efforts to reclaim the materials.

Attorney General Merrick Garland, who will ultimately make the decision on whether to indict Trump, has told associates that he will not overrule Smith’s judgment, whatever it turns out to be, unless he believes the special counsel has deviated from departmental standards and procedures.

Garland, and his top deputy Lisa Monaco, have publicly projected an air of detachment from the case, but they have been following developments in the privilege fights that have been playing out in the federal courthouse that sits just a few blocks from their office. They have been receiving regular briefings from aides who are getting updates from members of Smith’s team, according to two people familiar with the situation.

The legal battles over privilege began well before Smith was appointed to the special counsel post and have pitted two powerful forces against each other.

In the course of the investigation into Trump’s efforts to overturn the election, federal prosecutors have subpoenaed an army of Trump’s former aides in an effort to have the grand jury hear as many firsthand accounts as possible of his behavior in the White House in the days leading up to the attack on the Capitol on Jan. 6, 2021.

Trump’s lawyers have countered by asserting that any adviser close to the former president should not have to answer certain questions in front of the grand jury because of attorney-client privilege, which protects communications between lawyers and those they represent, and executive privilege, which shields some communications between the president and members of his administration.

Among the first people to engage in this debate were Marc Short and Greg Jacob, two of Pence’s top aides, who went into the grand jury in July and asserted privilege in response to certain questions, prompting prosecutors to file motions compelling their full testimony. Setting a pattern for the months that followed, Trump’s lawyers fought those motions but ultimately lost their case in front of Beryl Howell, then the chief federal judge in Washington, and subsequently in front of a federal appeals court.

With the privilege waived, Short and Jacob testified for a second time in October. They were followed two months later by Pat Cipollone and Patrick Philbin, the two top lawyers in Trump’s White House, who went through the same process.

The fight dragged on into this year as another round of aides — including Miller; Dan Scavino, a onetime deputy chief of staff; and Scavino’s boss, Mark Meadows, Trump’s final chief of staff — all tried, and failed, to assert forms of privileges. The last skirmish took place just a couple of weeks ago when a new chief judge, James E. Boasberg, turned down efforts to limit Pence’s testimony.

While getting these witnesses in front of the grand jury has been challenging and time consuming, the accounts they have given — or will eventually give — are only a fraction of the total body of evidence that Smith and his predecessors have gathered.

Well before Smith arrived, another prosecutor, Thomas Windom, obtained grand jury testimony from pro-Trump figures like Ali Alexander, who organized several prominent “Stop the Steal” events, and from a wide array of state officials involved in a plan to create fake slates of pro-Trump electors in swing states that were actually won by President Joe Biden.

Windom, who now works with Smith, also oversaw the seizure of phones from lawyers close to Trump, including John Eastman, Jeffrey Clark and Boris Epshteyn. Mike Roman, a campaign strategist who was the director of Election Day operations for the Trump campaign in 2020, also had his phone seized under Windom’s watch.

Other prosecutors who now work with the special counsel began an inquiry before Smith arrived into Save America PAC, a fundraising operation that Trump created after his loss in the election. As part of that investigation, dozens of subpoenas have been issued to companies that have received money from the political action committee, including some law firms.