By any reasonable measure, it’s been a bad week in the legal system for former President Donald Trump and his allies. Special prosecutor Jack Smith—who’s heading up inquiries into the run-up to the January 6 insurrection and the former president’s enormous cache of classified documents in Mar-a-Lago—has sent out a new flurry of subpoenas, including one for former Trump chief of staff Mark Meadows and Trump’s former personal attorney Evan Corcoran. The Corcoran subpoena seeks to compel the attorney’s testimony under what’s known as the crime-fraud exception to attorney-client privilege, which is not what you’d call a good look for the Trump legal team.
Meanwhile, a special grand jury in Fulton County, Ga., released excerpts of its recommendations that several of the witnesses it heard in its investigation of Trump’s election-tampering crusade there be considered for perjury indictments. While the Georgia panel was not empowered to hand down criminal charges itself, Fulton County District Attorney Fani T. Willis may do so, and would appoint a separate criminal grand jury in that scenario.
Still, the American public has seen many variations of this legal drama before, from the Robert Mueller probe of alleged Trump campaign collusion with Russia in the 2016 election to the two congressional impeachments of Trump to the recommendations of criminal contempt charges for the ex-president by the House select committee on January 6. With this multifront array of adverse developments, might Donald Trump’s long-deferred appointment with legal accountability be coming to pass?
Don’t bet on it, say veteran prosecutors and legal chroniclers. “We are on year seven of predicting that Trump will go to prison,” says former Department of Justice prosecutor Ankush Khardori. “You could actually mark it easily from 2015, at the start of the campaign; you have had people on CNN and MSNBC forecasting this continually since then. And the crucial element of that commentary was the claim that it will all be easy to prove—that’s where so much of this coverage really led the public awry. Even now, I wonder how many people who are following the special counsel’s inquiry closely really understand that if Trump is renominated and gets reelected, it’s all done—that even if he’s charged, he’ll pardon himself.”
The breathless tracking of Trump investigations across the mediasphere tends to consistently overlook the great legal cordon sanitaire at the center of much of this maneuvering: the exercise of executive privilege. This is the shape-shifting rationale of Executive Branch impunity that provided post hoc rationalizations for a host of unlovely abuses of Oval Office power, from the George W. Bush administration’s purge of US attorneys to former Trump adviser Steve Bannon’s refusal to honor subpoenas from Congress. The broad reach of this capacious doctrine stems from the cult of national security that took root during the Cold War, but the purblind logic of Executive Branch impunity has continued to enable its noxious spread three decades since the Cold War’s collapse—with the support of self-interested champions from both major parties.
That’s why nearly every request for cooperation from Justice Department lawyers in the Trump inquiries is met with an automatic challenge on executive privilege grounds; it functions as a sort of invisibility cloak for witnesses who might otherwise be deeply compromised, or complicit, in the trespasses under investigation. “There’s very little law as to who is included under the umbrella of executive privilege,” Khardori says—and what law there is springs from the nakedly self-interested motives of the Executive Branch itself. “The ‘law of executive privilege’ should be rendered in quotes,” he notes. “For a lot of people, they think the law is what Congress and the courts say. But here a lot of the law is just what the Executive Branch has generated for itself in the self-serving context for which it was most useful to them…. What we think of as the parameters of executive privilege are very amorphous. And any decision rendered by the Office of Legal Counsel”—the Justice Department division charged with this post hoc species of legal interpretation—“usually operates in contexts that are very bad. So you know: What a coincidence, these opinions totally coincide with the administration’s own interests!”
It’s scarcely surprising, then, that a body of doctrine designed to thwart effective oversight into Executive Branch operations functions exactly that way when a felonious former chief executive seeks safe legal harbor for himself and his cronies. And when that erstwhile president is Donald Trump—who compiled a baroque record of legal impunity in his long career as a private-sector brand hustler—the Oval Office sophist’s case for executive privilege comes to resemble something closer to a blank check, or a “get out of jail free” card, as the case may be.
The Biden administration has registered partial awareness of this scenario by permitting the January 6 committee to set aside executive privilege in its pursuit of witnesses aligned with the Trump White House. But even then, Khardori notes, the end result was equivocal, with selective and logic-chopping invocations of executive privilege bogging things down. “A lot of witnesses went in and refused to disclose their conversations with the president—including what Trump was saying during those critical three hours when the capitol was under siege,” he says. “They were very clear in not telling the committee what happened then, knowing the committee wouldn’t have time to litigate an executive privilege fight. I do wish, however, that the committee had been much clearer with the public on the positions these witnesses took. It in some ways weirdly distorted the record to be better for Trump than in reality. You go back to those three hours, and people will think, ‘Oh my gosh, [White House counsel] Pat Cippoline and [Attorney General] Bill Barr and everyone were telling Trump that this was really bad.’ But they don’t have enough information from this testimony to consider for their own purposes as voters, ‘What do I do with this three-hour gap?’… A lot of people said, ‘I’ll tell you what I told him, but I won’t say what he said,’ which is a complete breakdown in the logic of executive privilege law, such as it is.”
Such halting accounts of the many crimes and abuses carried out under the Trump White House’s imprimatur have helped create an entirely justified impression that dubiously legal executive power grabs are permitted to continue flourishing in plain sight—while the Justice Department and Fulton County are both desperately playing catch up. “Anyone with a shred of sentience knows at this point Trump is a serial fraudster worthy of prosecution several times over,” says ProPublica reporter Jesse Eisinger, author of a withering chronicle of failed Department of Justice investigations of private-sector criminals, The Chickenshit Club. “The only remaining debate is whether it’s on a petty scale—chiseling a hundred thousand dollars here for [former Trump Organization financial officer] Alan Weisselberg and a million there on a third-tier tax wheeze—or whether it’s on a to-date unproven grand scale: that he’s also a stop on the global money-laundering trail. His continuing liberty is testament that the Chickenshit Club is still thriving.”
Indeed, Khardori notes that the chief problem with the allegedly “more aggressive” battery of legal actions from Jack Smith is that it’s come far too late in the game. “Let’s be very clear: The subpoenas for Pence and Meadows are a year and a half later than they should have been. The problem that weighs on me most now is the political calendar…. On the one hand, it’s very possible that Biden will win reelection, that he’ll make sure that indictments and critical referrals proceed in due course from the Justice Department, and everything will move forward. It’s also very possible that Trump will win and shut everything down.”
That scenario is ultimately what makes the partial and slow-walked probes on all fronts feel too much like a procedural afterthought. “We’re getting very, very close to the point—I think we’re really there now, actually—that if you are someone who wants to see Donald Trump in prison, at least an equal order of business has to be defeating Trump,” Khardori says. “I’ll go further and say the Republican Party needs to be defeated, since a Republican successor to Biden would almost certainly pardon Trump to appease the base.”
Eisinger is even blunter: The clamor to see Trump frog-marched before TV cameras in an orange jumpsuit is “a testament to how pathetic Trump’s opposition is. This persistent hope that prosecutors can save us from ourselves should embarrass us at this point. Prosecutors cannot fix such a profound political problem as Trump and the Republican Party. Only voters and political leaders can do that.”