Pence has chosen to write publicly about at least some of his supposed conversations with Trump in connection with Jan. 6. It’s hard to say communications are privileged when you’ve previously deemed them fit to publicize. (via Deadline: Legal Blog)
So it’s at least unclear whether a former president can claim the privilege, saying nothing of whether the claim would succeed. Plus, the Supreme Court appeal over then-President Richard Nixon’s attempt to avoid subpoena compliance shows that a vague privilege assertion won’t do, and can be overcome by a specific need for evidence. The court observed in...
Therefore, precedent is on the government’s side. Of course, however, delays from litigating even a losing issue can be a victory of sorts for Trump. But further dampening the odds of a successful privilege claim is the previous rejection of Trump’s attempt to block Jan. 6 grand jury testimony. As The Washington Post, that rejection noted that former Pence aide Marc Short, for example, “probably possessed information important to the Justice Department’s criminal investigation of the Jan. 6, 2021, attack on the Capitol that was not available from other sources.
And the reason we think Pence has such information is yet another reason that a privilege claim should fail. That’s because Pence has chosen toabout at least some of his supposed conversations with Trump in connection with Jan. 6. It’s hard to say communications are privileged when you’ve previously deemed them fit to publicize.
So while the subpoena might present varying political and personal calculations for Pence — who may vie for the 2024 Republican nomination against Trump, someone who effectively condoned calls for Pence’s extrajudicial execution on Jan. 6 — the courts should have an easy time siding with DOJ on privilege.Jordan Rubin is the Deadline: Legal Blog writer.
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