Liz Cheney has posed a question that America may have to wrestle with for months: if there is evidence that ex-President Donald Trump committed crimes in his attempt to overturn the 2020 election, what message will he send if he is not charged?
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 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.
The news is the latest indication that the Justice Department, which has been chastised for months for moving too slowly to investigate Trump’s election tampering and incitement of the mob that stormed the US Capitol, is speeding up and broadening its scope – though there is no indication of when or even if the former President will be charged in the Justice Department’s investigation.
Learning what Trump was saying and thinking as his mob stormed the US Capitol and during his previous schemes to overturn his election loss could help determine whether the ex-President acted with corrupt intent and could face criminal charges.
More immediately, the conversation with Trump’s lawyers could serve as a prelude to what could be a pivotal legal battle over the extent to which Trump, as an ex-President, can assert executive privilege over conversations and advice received while in office. Because there has been little litigation on the issue of out-of-office presidents, such a case could go all the way to the Supreme Court and set new legal ground. Under the doctrine of separation of powers, executive privilege allows private conversations and advice given to a president to remain private, particularly from Congress.
The potential legal battle sparked by Trump’s frequently implausible privilege claims could drag the Justice Department investigation into the middle of the ex-likely President’s 2024 presidential campaign. This would risk igniting yet another national political conflagration on top of the many already sparked by the 45th President.
However, the latest news about the Justice Department investigation demonstrates that an aggressive criminal investigation is narrowing in on a former President of the United States – a historical watershed – following an administration that is still tearing at the guardrails of the democratic system even after leaving office.
This does not guarantee that Trump will be charged. A criminal investigation necessitates far more evidence than the House Select Committee, which painted a damning picture of Trump’s actions ahead of the Capitol insurgency. And Trump has made a career out of avoiding legal squabbles and attempts to impose accountability. He wriggled free from the Russia investigation during his presidency.
This, in turn, raises the prospect of yet another significant period of national trauma caused by Trump. The former President has already claimed that the Biden administration is using the Justice Department to pursue political opponents, a charge that many of his critics leveled against him while he was still president. Trump would be sure to claim that he is being victimized by a politicized investigation in response to any indications that he is a target of the investigation or possible indictments of those around him.
It was revealed last week that two of former Vice President Mike Pence’s top aides, former chief of staff Marc Short and former counsel Greg Jacob, had already testified before the grand jury. Investigators recently obtained a second warrant to search the cellphone of conservative lawyer John Eastman, who has been instrumental in pushing Pence to overturn the 2020 election by rejecting electors from key swing states. In June, federal agents searched the home of former Justice Department official Jeffrey Clark, who invoked his Fifth Amendment right against self-incrimination more than 100 times during a deposition before a House select committee.
In terms of executive privilege, historical precedent may work against the former President. During the Watergate scandal, then-President Richard Nixon invoked executive privilege in an attempt to prevent the release of incriminating audio tapes. However, in a decision that could be significant in Trump’s case, the Supreme Court stated that executive privilege could not be used to obstruct criminal justice administration.