Monthly Archives: August 2022

Commentary

When the Supreme Court overruled Roe v. Wade (pdf), most of the outrage came from those who believe the U.S. Constitution protects abortion rights. However, a few argued that the Constitution mandates a national standard forbidding abortion.

This essay explains why those who claim the Constitution forbids abortion are as much in error as those who think it legalizes abortion.

I have a long history of advocating for pro-life causes. But theres a difference between my political preferences and what the Constitution actually says. Respecting what the Constitution actually says is key to the rule of lawnecessary, in turn, for a free society. If we disagree with the Constitution, we should work to amend it. We should not fall into the lefts corrupt practice of pretending the Constitution says what it doesnt.

The arguments for the view that the Constitution bans abortion have been set forth as follows:

First: Its a scientific fact that humanity begins at the moment of conception.

Second: A human being is therefore a person as the Constitution uses the term.

Third: The Constitutions Fifth and the 14th Amendments each contains a Due Process Clause stating that no person shall be deprived of life without due process of law.

Fourth: Just as slavery was a national moral issue rather than a states-rights issue, abortion also is an issue of national morality.

Lets examine each of these arguments.

The essence of the Roe decision was that it was unconstitutional for a state to protect an unborn child, against the wishes of the mother, before the child could survive outside the womb. Although the court purported not to decide when human life begins, its ruling assumed that a fetus necessarily dependent on the mother is only potentially human.

This ruling was absurd: Ones humanity isnt solely a function of dependence or independence. If it were, then Americas large dependent population would be deemed non-human. Roes absurdity illustrates that judges are unequipped to make decisions of this kind.

But the fact that humanity isnt solely the result of independence doesnt prove that its solely the result of conception either. Exactly when life becomes human is a subject on which reasonable and informed people disagree. Some would place the critical moment at the time of conception; others at the time when cells differentiate from each other, or at the time of implantation, or when (and if!) the brain begins to function, or when the fetus has a heart, or when the soul enters the body. Science offers plausible answers and rules out implausible ones, but it doesnt give us the answer.

In this respect, the question of when humanity begins resembles the question of when it endsthat is, when death occurs. Theres a point in time when we can say a person is definitely alive and a point when we can say a person is definitely dead, but theres often a twilight zone between the two. To a lesser extent, the question of when humanity begins resembles the issues of when a person ceases to be a child and becomes an adult, or is mentally competent or incompetent.

In a democratic society, the answers to such questions are provided by the peoples freely elected representatives, acting under spiritual, scientific, and popular guidance. When legislatures delegate discretion to physicians and other providers (as they often do), they still impose legal guidelines.

Admittedly, decisions of this kind can be difficult. However, their difficulty argues for their being products of an open, democratic, and deliberative process. Not the results of abstract reasoning or judicial decree.

The Fifth Amendment forbids the federal government from depriving any person of life without due process of law. What does person mean?

In daily discourse, we often use person interchangeably with human being. This is not necessarily true in legal language, however. Some traditional legal systems have denied personhood to certain classes of human beings, such as slaves or foreigners. Our own legal system grants personhood to corporations, which arent human beings at all, but rather formally organized collections of human beings.

In 1791, when the state legislatures ratified the Fifth Amendment, the American legal system recognized all born human beings, even slaves, as persons. But it didnt recognize the unborn as fully human. And it certainly didnt recognize the unborn as legal persons.

Applying the Fifth Amendment to include the unborn within its word person would require changing the meaning of the amendment as its ratifiers understood it. More on that below.

When the state legislatures ratified the 14th Amendment in 1868, knowledge of fetal development was far more advanced than in 1791. Accordingly, most states had instituted some legal protection for the unborn.

But granting some legal protection didnt mean that lawmakers believed the unborn were fully human, much less persons. (Lawmakers also grant legal protection to animals and forests, for example.) Although the legislative and public debates over the amendment discussed the personhood of ethnic minorities and women, no one seems to have added fetuses or embryos to the list. And in the years after 1868, laws were passed and lawsuits filed to protect the 14th Amendment rights of ethnic minorities and womenbut not the unborn.

This and other evidence forces the conclusion that the 14th Amendments term person doesnt include those yet unborn.

You might respond by saying, Whatever the opinion was in 1791 and 1868, we now know that the unborn are human and, therefore, ought to be legal persons. So lets extend the two Due Process Clauses to them.

Of course, this line of argument reeks of the unprincipled living constitutionalism most conscientious Americans reject. But theres an even bigger problem with it: Even if we interpret person in the Fifth and 14th Amendments to include embryos and fetuses, most abortions would remain unaffected.

The Fifth Amendment Due Process Clause prevents the federal government from taking life, liberty, or property without following pre-set procedures. The 14th Amendment extends the same restriction to state governments. But the two amendments apply solely to governmentsnot to transactions by private parties, such as the typical abortion procedure. In this respect, the Fifth and 14th Amendments are unlike the 13th (abolishing slavery): The 13th applies both to governments and to private individuals; the Fifth and 14th apply only to governments.

In constitutional law, the rule excluding private conduct from the Fifth and 14th amendments is called the state action doctrine. The state action doctrine protects federalism and prevents officials and judges from using the amendments to restrict individual freedom.

In sum, as Justice Samuel Alito pointed out in Dobbs v. Jackson Womens Health (pdf)and as the late, great Justice Antonin Scalia said repeatedlythe Fifth and 14th Amendment Due Process Clauses really have nothing to do with abortion.

I have seen one writer argue that Abortion is no more a states rights issue than slavery was in the mid-19th century.

However, the writer got the history wrong. Slavery was a moral issue, but it also was very much a matter of states rights. Even most anti-slavery activists acknowledged this. Abraham Lincoln, for example, agreed that states could maintain slavery within their own borders indefinitely. What Lincoln contended was that Congress should adopt a law abolishing slavery within federal territories.

Slavery ceased to be a states-rights issue only when Americans passed a constitutional amendment abolishing it. Similarly, those seeking to end abortion in our country will have to obtain a constitutional amendment to do so. The present Constitution will not do it for them.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Follow

Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.

Follow this link:
Understanding the Constitution: Why It Doesn't Protect the Unborn - The Epoch Times

Former President Donald Trump's children, Donald Jr. and Ivanka, have testified before investigators with the New York attorney general's office looking into the Trump Organizations finances and whether the firm inflated or deflated real estate valuations to suit its interests, two sources close to the investigation confirmed to NBC News Thursday.

Donald Trump Jr. testified last week, the sources said. Ivanka Trump testified Wednesday, they said. According to a source, neither of them ever invoked their constitutional fifth amendment right. It wasn't clear if the meetings were held in person.

The depositions had been expected to be completed last month but were delayed by the death of their mother, Ivana Trump. A spokesperson for New York Attorney General Letitia James' office offered condolences at the time in announcing the delay.

Donald Trump Jr. and his brother, Eric, lead the Trump Organization. Eric Trump pleaded the Fifth when he was deposed by video in October 2020. He did so more than 500 times, according to a January court filing from James' office. Ivanka Trump was once a top Trump Organization executive and later served as senior White House adviser while her father was in office.

Her mother, Ivana Trump, died July 14 at her East 64th Street townhouse. Her death was ruled accidental. The medical examiner ruled her death an accident and said she died of blunt impact injuries to her torso. The office declined further comment, but a senior official with direct knowledge of the matter said the circumstances were consistent with a fall down the stairs and there was no indication of foul play.

Ivana Trump was remembered at a funeral at St. Vincent Ferrer Catholic Church earlier this month. Her burial, though, has now become a story of its own. Learn more here.

Wednesday's early afternoon service is invitation-only and being held at St. Vincent Ferrer Catholic Church on Lexington Avenue, between 65th and 66th streets, on the Upper East Side, a source in the Trump family told NBC News.

Donald and Ivana Trumps three children Donald Jr., Ivanka and Eric and their families followed Ivanas gold-colored coffin into St. Vincent Ferrer Roman Catholic Church on Manhattans Upper East Side. The patriarch himself reportedly arrived 10 minutes later.

The former president's children, their spouses and children stood in line outside the church after they arrived and they somberly waited for white-gloved pallbearers to carry Ivana Trump's casket from the hearse into St. Vincent.

A very sad day, but at the same time a celebration of a wonderful and beautiful life," the ex-president wrote on his social media platform, Truth Social, before heading to the Mass with his current wife, former first lady Melania Trump.

Tiffany Trump, the daughter of the former president and his second wife, Marla Maples, also attended the service, as did family friends including Jeanine Pirro, co-host of Fox News' The Five, and Charles Kushner, a real estate developer and the father of Ivanka Trump's husband, Jared Kushner. Fashion designer Dennis Basso, a longtime friend of Ivana Trump's, was also among the mourners.

The Mass was an elegant, wonderful send-off for Ivana Trump, longtime friend R. Couri Hay said as he emerged.

A Czech-born ski racer and sometime model, Ivana Trump married the future president in 1977, and became a businesswoman. She and Trump formed a publicity power couple in the 1980s, and she was the mother of his oldest children.

I am very saddened to inform all of those that loved her, of which there are many, that Ivana Trump has passed away at her home in New York City, Trump posted on his social media app, Truth Social. She was a wonderful, beautiful, and amazing woman, who led a great and inspirational life. Her pride and joy were her three children, Donald Jr., Ivanka, and Eric. She was so proud of them, as we were all so proud of her. Rest In Peace, Ivana!

Their children also released a statement, calling her "an incredible woman a force in business, a world-class athlete, a radiant beauty and caring mother and friend. Ivana Trump was a survivor.

She fled from communism and embraced this country, the statement continued. She taught her children about grit and toughness, compassion and determination. She will be dearly missed by her mother, her three children and 10 grandchildren.

She became an icon in her own right, dripping with 80s style and elegance, complete with her signature beehive hairdo. She influenced the look of the over-the-top Patsy Stone in the classic British sitcom Absolutely Fabulous, with the character extolling Ivana as tremendous in one episode.

Trump herself would eventually appear in the 1996 hit film The First Wives Club with the now-famous line, Ladies, you have to be strong and independent, and remember, dont get mad, get everything.

The Trumps became partners in love and business, with Ivana playing roles such as manager of one of his Atlantic City casinos. She worked tirelessly there and also had a hand in making Trump Tower an image of 80s success, helping the decorator and taking a strong interest in such details as the doormens uniforms, said Barbara Res, a former Trump Organization executive who was in charge of the skyscrapers construction.

She did all that to impress Donald, to win his approval. She was traveling back and forth all the time, and leaving her kids. She had a tremendous work ethic.

The two were fixtures of New York's see-and-be-seen scene before their equally public, and messy, 1992 divorce. Donald Trump had met his next wife, Marla Maples.

During the split, Ivana Trump accused him of rape in a sworn statement in the early 1990s. She later said that she didnt mean it literally, but rather that she felt violated.

Donald Trump would say at times that he regretted having Ivana join him in business and blamed it for the unraveling of his marriage.

I think that putting a wife to work is a very dangerous thing, he told ABC News in the early 90s. If youre in business for yourself, I really think its a bad idea to put your wife working for you, he said, complaining that when she turned into a businessperson, a softness disappeared.

Nevertheless, Ivana ultimately remained friendly with her ex-husband, whom she famously called The Donald. She enthusiastically backed his 2016 White House run, saying he would make big changes in the United States, andtold the New York Postthat she was giving him suggestions on his campaign.

We speak before and after the appearances and he asks me what I thought, she said. She said she advised him to be more calm.

But Donald cannot be calm, she added. Hes very outspoken. He just says it as it is.

Ivana Trump, a skier-turned-businesswoman who formed half of a publicity power couple in the 1980s as the first wife of former President Donald Trump and mother of his oldest children, has died in New York City. NBC New York's Ida Siegal reports.

However supportive, she occasionally ruffled feathers.

In 2017, while promoting a book, she told Good Morning America that she spoke with the then-president about every two weeks and had his direct White House number, but didnt want to call to frequently because Melania is there and I dont want to cause any kind of jealousy or something like that because Im basically first Trump wife, OK? she said with a laugh. Im first lady, OK?

Melania Trumps spokesperson at the time responded, saying there was clearly no substance to this statement from an ex, this is unfortunately only attention-seeking and self-serving noise.

Ivana Trump had continued her business ventures in recent years, promoting an Italian weight-loss diet in 2018.

Health is the most important thing we have. Lets keep it that way, she said at the time.

Ivana Trump's death came during a fraught week for the Trump family. Two of her children, Donald Jr. and Ivanka, and the former president are due to appear in coming days for questioning in the New York attorney general's civil investigation into the familys business practices.

Ivana Trump was born Ivana Zelnickova in 1949 in the Czechoslovak city of Gottwaldov, formerly Zlin, which had just been renamed by the Communists who took over the country in 1948.

She was married four times, most recently to Italian actor Rossano Rubicondi. The two divorced in 2009 after a year of marriage but continued to see each other off and on until 2019, when she told the New York Post the relationship had run its course. He died last year of cancer at 49.

Go here to see the original:
Sources: Donald Trump Jr., Ivanka Testify Before NY AG's Office in Finance Probe, Neither Pleads the 5th - NBC New York

Published: 8/5/2022 3:48:02 PM

Modified: 8/5/2022 3:44:55 PM

GREENFIELD A Level 3 sex offender apprehended in Florida in April 2021, a month after being added to the Massachusetts State Polices list of most-wanted fugitives, demanded a new attorney following motion hearing on Friday.

Jeffrey Cancel-Muniz, 42, formerly of western Massachusetts, appeared in Franklin County Superior Court and was the only party involved with his case who was physically present in the room. Judge Karen Goodwin appeared via Zoom, as did Assistant District Attorney Sandra Staub and defense attorney Thomas Glynn. The hearing concluded with Goodwin and the two attorneys agreeing to schedule a status conference for Aug. 26.

I want my lawyer to withdraw from my case, Cancel-Muniz said as court officers led him away before the Zoom feed ended.

He was last in court for a motion hearing in June, when Judge Mark Mason decided two witnesses in the case would not have to testify at trial. Mason spoke with both individuals, who invoked their Fifth Amendment privileges to not incriminate themselves on the stand. One of the individuals is the complaining witness against Cancel-Muniz, who faces charges of strangulation or suffocation, kidnapping, rape and aggravated rape as a result of a sexual assault that allegedly occurred in Deerfield in May 2020.

On Friday, however, Staub reported one of the witnesses is willing to waive Fifth Amendment privileges. Glynn said this was the first time he was hearing this. Goodwin asked Glynn if he would be ready to go to trial earlier than the planned November date; he replied that he would have to check his schedule.

Glynn also mentioned he had not received an unredacted transcript of an audio interview a Deerfield Police detective conducted with an informant at the Franklin County Jail and House of Correction in Greenfield. Staub explained to Glynn and Goodwin she gave the transcript to Isaac Mass, Cancel-Munizs previous attorney, and I will make sure that you have that as well, counsel.

Cancel-Muniz was arrested in Florida in April 2021 after a hotel clerk had an issue with him, searched his name online and saw his face on a poster the State Polices Violent Fugitive Apprehension Section had released to news media outlets. Deputies with the Osceola County Sheriffs Office responded to the Travelodge Suites by Wyndham Kissimmee Orange after the lodging facility notified them that Cancel-Muniz was a guest there, according to a statement from Massachusetts State Police spokesperson David Procopio at the time. Deputies verified the warrants against Cancel-Muniz and arrested him as a fugitive from justice.

Reach Domenic Poli at: dpoli@recorder.com or 413-772-0261, ext. 262.

Continue reading here:
Former fugitive charged with rape in Deerfield case demands new lawyer - The Recorder

The prosecutor is asking the judge to question Catherine Hoggle's competency himself, despite the doctor's opinions that she is "profoundly mentally ill."

ROCKVILLE, Md. The Montgomery Countys States Attorney told a judge Thursday he wants to put a mom accused of killing her own kids more than seven years ago on the witness stand so the judge can determine for himself if she is competent to stand trial.

In the seven years since Sarah and Jacob Hoggle went missing at the age of two and three, their mother, Catherine Hoggle, has been declared incompetent to stand trial 20 times. Catherine Hoggle currently remains in a state mental hospital, and her lawyer alleges she is "profoundly mentally ill."

Maryland law says Catherine Hoggle either has to go on trial by December 2022, or the murder charges have to be dropped. Prosecutors fear that without criminal charges to hold her, she could eventually be released from the hospital without facing accountability for the alleged murders.

Montgomery County States attorney John McCarthy asked Judge Richard Jordan to question Hoggle himself.

"It's not the medical decision, it's a legal determination," McCarthy said. "The person who has the legal authority to make this decision is the judge, not the doctors."

Judge Jordan, whos been brought out of retirement to hear the case, said in court that he was not prepared to put Hoggle on the stand during the Thursday hearing. Her lawyer warned that he would advise Hoggle to assert her fifth Amendment rights and refuse to be questioned. But McCarthy said in a matter of mental competency the judge could compel Hoggle to answer questions.

Jordan scheduled another hearing for October and asked for both sides to bring witnesses including doctors.

Meanwhile, supporters of the children's father, Troy Turner, staged a demonstration outside the Montgomery County Circuit Court in Rockville saying justice delayed is justice denied.

"As far as her talking, as long as she's comfortable, there's no reason for her to," Turner said. "She is someone who has killed two children and she's sticking to her story. That doesn't show that she's delusional, it shows that she is a murderer sticking to her story."

Turner and his supporters said a murder trial would not only mean accountability for Catherine Hoggle, but it might force her to give up her secrets. Despite years of searching, the two children have never been found.

Prosecutors, however, maintain theres ample circumstantial evidence to convict Hoggle of murder.

Read the rest here:
Time running out to try Catherine Hoggle for the disappearance, suspected murder of her 2 kids - WUSA9.com

Short, Jacob and Cipollone testified to the Jan. 6 select committee but negotiated strict terms to avoid discussing their direct interactions with Trump a nod to the disputed possibility that such communications could be protected by executive privilege. But its unlikely that such claims would pass muster in a criminal probe.

There is no way that any court would say they didnt have to testify to conversations with President Trump in a grand jury investigation a criminal investigation arising out of that conduct, said Neil Eggleston, who served as White House counsel to President Barack Obama and represented President Bill Clinton in several executive privilege fights. Theres no doubt if this got to a court, it would hold that the department is entitled to the information. I think its a no-brainer.

CNN reported last week that Short and Jacob declined to answer some questions before the grand jury on executive privilege grounds, as they had done during depositions conducted by the House Jan. 6 Select Committee. The panel has argued that executive privilege does not apply to nearly any conversation Trump had related to efforts to overturn the election, but the committee has opted against litigating those thorny and time-consuming issues, instead permitting cooperating witnesses including Short, Jacob, Cipollone and others to answer questions without revealing specific details of conversations with Trump that could even arguably be privileged. But Trumps suit against the panel and the National Archives was an exception to the panels general approach of seeking to avoid or delay litigation on such issues.

Pat Cipollone, former White House counsel, during an interview displayed at a hearing by the House select committee investigating the Jan. 6 attack on the U.S. Capitol, July 12, on Capitol Hill in Washington.|House Select Committee

It remains unclear whether Trump intends to formally assert executive privilege in a bid to block any testimony to the grand jury. A Trump spokesperson did not respond to requests for comments on the former presidents plans.

However, Trump is likely to be at a disadvantage in such a legal battle because of the defeats he already suffered as he tried to block the National Archives from disclosing thousands of pages of his White House records to the Jan. 6 select committee. That fight also helped the Justice Department hone arguments that may come into play in the grand jury probe encircling Trumps allies.

The department represented the National Archives in that fight, lodging extensive briefs opposing Trumps power to assert executive privilege as a former president over the objection of the sitting president, Joe Biden.

The exceptional events of January 6 amply justify President Bidens determination that assertion of the privilege is unwarranted with respect to the records at issue here, Solicitor General Elizabeth Prelogar contended in a Supreme Court brief, and [Trump] has not even attempted to offer any specific countervailing need for confidentiality.

In short, the Justice Departments grand jury investigation might benefit from Trumps repeated efforts to block investigators in the past. Even before those court rulings, the department typically had the upper hand in battles over privilege. Grand jury subpoenas are more legally potent than the congressional variety, and the Justice Department will enter any fight with Trump armed with a court-approved strategy to defeat Trumps executive privilege claims.

Judges at every level determined or acquiesced in rulings that the urgency of Congress need to investigate the Jan. 6 insurrection easily outweighed Trumps desire to maintain the secrecy of potentially privileged records.

Presidents are not kings, and Plaintiff is not President, U.S. District Court Judge Tanya Chutkan wrote in the first ruling against Trump last November. The D.C. Circuit Court of Appeals followed suit, with a 68-page opinion rejecting Trumps effort to assert privilege on multiple bases.

The January 6th Committee has demonstrated a sound factual predicate for requesting these presidential documents specifically, Judge Patricia Millett wrote for the three-member panel. There is a direct linkage between the former President and the events of the day.

The panels victory against Trump unlocked some of its most crucial evidence against the former president, including handwritten notes, call and visitor logs and speech drafts that showed the West Wing struggling to get Trump to condemn violent supporters on Jan. 6 and continue his efforts to overturn the election during and after the riot.

A separate legal fight between Trumps last chief of staff, Mark Meadows, and the Jan. 6 select committee may also bear on Trumps ability to insert executive privilege issues into the grand jury investigation. In that civil case, Meadows asserted immunity from congressional subpoenas, a power that the Justice Department has long supported for sitting presidents and their immediate advisers.

But the department had never weighed in on whether similar immunity applies to a former aide to a former president. In fact, the Justice Departments only reference to any similar scenario was to directly cite a decision by President Harry Truman to resist a subpoena from the House UnAmerican Activities Committee after he had left office, citing separation-of-powers concerns. But Trumans quote held no legal value, and the matter has never been litigated until now.

In a 17-page brief filed in Meadows case just over two weeks ago, the Justice Department for the first time said that a former aide to a former president did not have absolute immunity from compelled testimony, and that Bidens decision to waive privilege should take precedence over any attempt by a former president to assert it.

Allowing a former President to override the decisions of the incumbent would be an extraordinary intrusion into the latters ability to discharge his constitutional responsibilities, the department argued.

Meadows lawyer George Terwilliger sharply criticized the Justice Departments move, saying it elected to become an advocate for the committee and urged the court to go into untested legal waters.

White House Chief of Staff Mark Meadows speaks to reporters October 2, 2020 in Washington, D.C.|Drew Angerer/Getty Images

Some executive privilege battles litigated in civil cases have dragged out for years. One, involving a House subpoena for Justice Department documents related to the Operation Fast and Furious gunrunning investigation, stretched for seven years, from 2012 to 2019.

However, the courts tend to fast-track grand jury subpoena battles because of the priority given to criminal investigations.

The Department of Justice can get in front of a court really fast, unlike Congress, said Eggleston, the former Obama White House counsel. They can do that in a matter of days. They can work so much faster and they dont really have to negotiate.

Legal experts say the reported grand jury subpoenas to Cipollone and Philbin raise issues beyond the traditional executive privilege ones because they were, at times, giving Trump legal advice that would normally be protected by attorney-client privilege. However, in a 1998 dispute stemming from Independent Counsel Ken Starrs probe of President Bill Clintons White House, the D.C. Circuit ruled that governmental attorney-client privilege had to yield to a grand jury subpoena in the context of a criminal investigation.

The D.C. Circuit is very explicit that government attorneys do not have any greater privilege than other advisers when it comes to information they have that is relevant to a grand jury, said Ryan Goodman, a New York University law professor and co-founder of the Just Security blog. I think its highly likely that Trump will lose very quickly because theres case law in the D.C. Circuit contradicting any such claims.

One former White House lawyer for Trump, Ty Cobb, said he thought some of the recent court rulings might have been mistaken to hold that a former president couldnt assert executive privilege if the current one disagreed.

Im not sure that that is right, said Cobb, who has publicly broken with Trump and called his actions related to Jan. 6 disqualifying.

However, Cobb acknowledged that either way, current law says criminal investigators can get even information protected by that privilege if they show an urgent need and no other place to go for it.

If you tick those boxes, you can be questioned, he said. The attorney noted, though, that some witnesses might choose to invoke their Fifth Amendment rights regardless of, or in addition to, any privilege Trump might assert, and the right against self-incrimination is largely treated as sacrosanct.

The initial stages of any executive privilege fight over grand jury testimony about Trump would go to Chief Judge Beryl Howell, an Obama appointee and former Senate Judiciary Committee counsel who has repeatedly voiced outrage about the Jan. 6 attack.

Beyond that, Trumps lawyers can take the issue to the D.C. Circuit, which already snubbed him in the White House records fight, and on to the Supreme Court, which did the same.

The only outward sign of hesitation from the Justice Department on executive privilege issues is its decision last year not to bring criminal charges against Meadows and Trumps social media guru, Dan Scavino, for defying House subpoenas based on what they said were instructions from Trump.

But the departments recent backing for the House in Meadows civil suit seems to indicate that Justice Department officials are committed to their view that the stronger legal argument here is that, as a former president and because of the gravity of the Jan. 6 events, Trump cannot successfully assert the privilege to block testimony.

Indeed, some legal observers say Trumps chances of succeeding in this sort of court battle are so remote that he might not even choose to fight it out. A privilege battle that attorney John Eastman pursued in court against a House subpoena led to a judge ruling in March that Trump likely committed a crime obstruction of justice by trying to interfere with the certification of electoral votes by Congress on Jan. 6, 2021.

One potential downside for Trump if he does put up a privilege fight over the grand jury demands is a repeat of what happened in the Eastman case, with a judge or multiple judges publicly declaring that he probably broke criminal law. It wouldnt amount to a criminal charge, but would fuel public perceptions that Trump crossed the legal line in his activities trying to overturn President Joe Bidens win at the ballot box.

Theres a potential risk for Trump that a judge holds theres sufficient evidence of his engaging in criminal conduct, said Goodman, the New York University law professor, a possibility that might dissuade Trump from embarking on a quixotic legal battle to shield his advisers from testifying about their conversations with him.

Link:
Trump faces uphill fight on executive privilege in DOJ probe - POLITICO