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The 2020 Presidential Election brought with it many legal questions and, along with it, plenty of people looking for answers. Samuel Dewey, an experienced legal professional who has held counsel positions with both the House of Representatives and the Senate, explains what the recent letters released by the Department of Justice (“DOJ”) mean for the investigations of former President Donald Trump and his role in the events surrounding the election.
Background
A recent news release alleges that a “conspiracy” took place between then-President Donald Trump and his Acting Assistant Attorney General of the Civil Division Jeffrey Bossert Clark to use the DOJ to overturn the results of the 2020 presidential election.
In response to this report, the Senate Judiciary Committee and House Oversight and Reform Committee launched full-scale investigations into the allegations. As part of this inquiry the Committee’s sought interviews from former senior DOJ officials.
The DOJ responded with formal letters allowing White House and administration officials to provide unrestricted testimony about their conversations with Trump regarding the events in question. These letters noted that DOJ consulted with the White House and the White House did not intend to invoke executive privilege. DOJ routinely bars its top officials from testifying about their conversations with the White House, citing the potential for the President to invoke “executive privilege” on any communication as the reason for the block.
Extraordinary Events and Personal Capacity
This action is extraordinary. A constant in the politic conflict between the Executive Branch and Congress is that the Executive Branch will seek to maximize Executive Power to the maximum possible extent. This occurs across Administrations. Indeed, the Trump Administration routinely blocked Congressional attempts to gain information about similar communications under the Obama Administration. As did the Obama Administration as to the Bush Administration before it.
According to the Biden Administration everything is different in this case because of the “extraordinary” nature of the Capitol riots and (unsupported) allegations that President Trump opposed release to enhance his personal interests.
The allowance for unrestricted testimony has likely paved the way for a multitude of ongoing investigations concerning former President Trump. Similar testimony may soon be requested by the select committee investigating the Capitol riot itself. It remains to be seen if DOJ’s decision to eschew tradition will have broader implications in the relationship with the Executive and Congress.