Analysis by Stephen Collinson, CNN
Updated: Fri, 05 Aug 2022 21:25:21 GMT
Liz Cheney has posed the question with which America may have to wrestle for months to come: if there is evidence that ex-President Donald Trump committed crimes in seeking to overturn the 2020 election, what message will it send if he's not charged?
The Wyoming representative, who serves as the vice chair of the House select committee investigating January 6, 2021, issued what was effectively a challenge to the Justice Department as CNN exclusively reported on Thursday that Trump's lawyers are in talks with its prosecutors -- in the most concrete step yet toward the former commander-in-chief.
The news was the latest sign that the department, criticized for months for moving too slowly to investigate Trump's election stealing effort and his incitement of the mob that invaded the US Capitol, is moving with speed and broadening its scope -- though there remains no indication when or even if the former President will be charged in the Justice Department's probe.
Cheney argued in an interview with CNN's Kasie Hunt taped Wednesday that if the Justice Department failed to act in the face of evidence of criminal wrongdoing, it would be disastrous to the idea of America itself.
"Understanding what it means if the facts and the evidence are there, and they decide not to prosecute -- how do we then call ourselves a nation of laws?," said Cheney, one of two Republicans on the panel.
CNN senior legal analyst Preet Bharara said that the fact that Trump's lawyers are already in communication with the investigation suggests they believe he may have some significant exposure down the line.
"Actively engaging suggests to me that the lawyers think that there is some jeopardy here and they should engage sooner rather than later," Bharara, a former US attorney for the Southern District of New York, told CNN's Wolf Blitzer. Bharara cautioned that the investigation could last a long time and that a decision "about whether or not to charge Donald Trump" could occur many months from now.
Learning what Trump was saying and thinking as his mob smashed its way into the US Capitol and during his prior schemes designed to overturn his election loss could help establish whether the ex-President acted with corrupt intent and could be at risk of being criminally charged.
More immediately, the dialogue with Trump's lawyers could also be the curtain raiser to what may well be a critical legal fight over the extent to which Trump -- as an ex-President -- can assert executive privilege over conversations and advice he received while in office. Such a case could go all the way to the Supreme Court and in itself break new legal ground since there is little litigation on the issue concerning out-of-office presidents. Executive privilege is the custom under which private conversations and advice given to a president can remain private, especially from Congress, under the doctrine of separation of powers.
A long legal duel
The potential legal battle that Trump's often risible privilege claims may spark could push the Justice Department investigation into the middle of the ex-President's likely 2024 campaign. This would risk yet another national political conflagration on top of many ignited by the 45th President.
But more broadly, the latest news about the Justice Department inquiry shows that there is an aggressive criminal probe that is narrowing in on a former President of the United States -- a historical watershed -- after an administration that is still tearing at the guardrails of the democratic system even out of office.
This does not necessarily mean that Trump will be charged. A criminal investigation requires a far higher level of proof than the House select committee, which has painted a damning picture of Trump's actions ahead of the Capitol insurrection. And Trump has made a life's work of escaping legal scrapes and attempts to enforce accountability. In his presidency alone, he wriggled free from the Russia investigation. He was the first President to be impeached twice by the House, although he wasn't convicted in Senate trials or barred from future federal office.
Still, according to the new CNN report, Trump's team has warned him there may be indictments resulting from the grand jury investigation. And sources say the former President has asked his advisers whether he is in personal legal jeopardy.
New visibility into aggressive DOJ investigation
Kimberly Wehle, a professor at the University of Baltimore School of Law, told CNN's Erin Burnett that the contacts between Trump's lawyers and prosecutors pointed to a legal joust over the scope of executive privilege.
"I think that Donald Trump is going to lose that battle, but the fact that his lawyers are engaging in this and telling him that he better beware, indictments could come, I think is very serious news for the former President but very good news for democracy, the rule of law and the Constitution," Wehle said.
The latest revelations about the grand jury probe reinforce signs that the Justice Department is acting with speed and expansive scope to investigate the insurrection following months of complaints -- even from members of the House select committee -- that it did not appear to be that active.
This in turn raises the possibility that yet another significant period of national trauma caused by Trump could lie ahead. The former President has already claimed that the Biden administration is weaponizing the Justice Department to pursue its political enemies -- a charge many critics leveled against him while he was still president. Trump would be sure to react to any signs that he is a target of the investigation or the possible indictments of those around him by claiming that he is being victimized by a politicized investigation. Given his hold over his supporters, and a record of inciting violence, political tensions could become acute.
All of this will sharpen the dilemma that Attorney General Merrick Garland would face if the evidence from the criminal probe suggests a prosecution is merited. Indicting a former President -- especially one running for the White House again -- would incite a political storm. This must raise the question of whether targeting Trump would be in the broader national interest outside the criminal context. At the same time, failing to pursue an ex-President accused of helping to foment a coup attempt could create an equally dangerous precedent and send a signal to future aberrant Presidents.
Trump team discussed potential defense strategies
The most significant news yet about the Justice Department criminal probe follows unmistakable signs of a comprehensive and quickening investigation. The department has, for instance, subpoenaed former White House Counsel Pat Cipollone and ex-deputy counsel Patrick Philbin.
Last week, it emerged that two of former Vice President Mike Pence's most senior aides, former chief of staff Marc Short and former counsel Greg Jacob, have already spoken to the grand jury. Investigators recently obtained a second warrant to search the cellphone of conservative lawyer John Eastman, one of the key figures in pushing Pence to overturn the 2020 election by rejecting electors from important swing states. Federal investigators in June carried out a pre-dawn search of the home of former Justice Department official Jeffrey Clark, who invoked his Fifth Amendment right against self-incrimination more than 100 times in a deposition to the House select committee.
In the latest reporting by CNN's Katelyn Polantz, Kara Scannell, Gabby Orr and Kristen Holmes, sources revealed that some members of Trump's legal team discussed possible defense strategies on at least two occasions in recent months. This comes as they await developments not solely in the Justice Department investigation but in a separate probe by officials in Georgia into Trump's efforts to overturn Biden's election victory in the crucial state in 2020.
Trump has grilled his attorneys on whether they actually believe he will face formal charges, but he has expressed skepticism that he will be indicted, one of the sources familiar with the matter said.
The CNN team also reveals that Trump has ignored advice from advisers to avoid speaking to former and current aides who have become entangled in the House select committee probe and could be drawn in by the criminal investigation.
When it comes to the issue of executive privilege, historical precedent could work against the former President. During the Watergate scandal, then-President Richard Nixon asserted executive privilege to try to prevent the handover of incriminating audio tapes. But in a ruling that could be significant in Trump's case, the Supreme Court said that executive privilege could not be used to thwart the administration of criminal justice.
The House January 6 committee did not litigate the question of Cipollone's reluctance to talk about certain conversations with Trump on the basis of executive privilege. It is racing against a ticking clock since it is likely to be disbanded by pro-Trump Republicans in the House if control of the chamber changes after the midterm elections in November. But the Justice Department has the luxury of more time to conduct a legal fight.
And the possibility of a prolonged investigation is one reason many observers believe Trump is leaning toward an early announcement of a 2024 presidential campaign, which would enable him to rile up his supporters by arguing that the investigation is a politicized attempt by the Biden administration to keep him from reclaiming the White House.