Donald Trump is running out of lawyers – but not legal problems – so has brought on used congressman Doug Collins to handle some matters for him. Specifically, Collins is opining on DOJ witnesses that congressional committees want to hear from concerning Trump’s efforts to involve them in his nefarious scheme to overturn the 2020 Presidential Election.
In Congress, Collins was known for vigorously advancing nonsensical arguments, and he doesn’t disappoint here. He sent a bizarre letter to at least one of the potential witnesses, former Acting Attorney General Jeffrey Rosen, who Trump attempted to strong arm into declaring the election “corrupt,” so as to give Trump and his co-conspirators in Congress a chance to subvert American democracy.
Collins no doubt envisioned his letter as a hard-hitting “shot across the bow,” but in reality, it fell limply into the sea before it even crossed the bow, thus demonstrating how weak and impotent Trump’s arsenal is. Collins’ letter began with tepid claims of Executive Privilege regarding Rosen’s conversations with Trump.
He advanced the peculiar notion that the disgraced former President being investigated for attempting to illegally thwart the peaceful transfer of power – a grave threat to the Republic – would be heard to claim Executive Privilege (which the Supreme Court has said is “not for the benefit of the President as an individual, but for the benefit of the Republic”) over the current holder of the office, who has declined to assert the privilege here.
But Collins generously offered that Trump was willing to not assert the privilege — unless the committees try to call any other former federal officials beyond the former DOJ officials already designated. This is an excellent way for a lawyer to signal to the government that there are other, unnamed former Trump aides who know even more damaging information about Trump than the DOJ officials. Clever lawyering, indeed!
Executive Privilege is a squishy, court-created privilege that doesn’t carry any penalties for a former federal official who doesn’t honor it. Unlike past situations, where Trump had leverage over potential witnesses (current or former officials who had their own reasons for not wanting to testify, such as job security or saving their blockbuster revelations for a forthcoming book), these witnesses (except for former acting assistant attorney general Jeffrey Clark) likely have no incentive to avoid testifying.
Except for Clark, they did the right thing and refused to go along with Trump’s cynical scheme, so they are in no legal jeopardy themselves. Moreover, it is fair to assume that the non-participants resent the fact that Trump tried to involve them in his seditious conspiracy.
And there is no legal reason for the former DOJ officials to avoid testifying. Even the more robust attorney-client privilege contains a crime-fraud exception to prevent criminals from abusing the attorney-client relationship to further their commission of a crime (or fraud) or to cover up their ongoing crimes (or frauds).
The exception applies even if the attorney didn’t participate in the crime (or fraud); the key is whether the client was in the process of committing a crime (or fraud) or intended to commit one, and his discussion with the lawyer was intended to further the crime (or fraud) or to cover it up. Hello Trump!
Moreover, the witnesses do not need Trump’s permission to testify, nor do they need to await the outcome of any legal process Collins has threatened to initiate to raise the issue. To put it in stark legal terms, Trump is screwed.