Mr. Trump's Claims of Executive Privilege

¶A time-consuming investigative challenge that the Office faced was Mr. Trump's broad invocation of executive privilege to try to prevent witnesses from providing evidence on a wide variety of topics. Mr. Trump asserted a form of executive privilege known as the presidential communications privilege-a special privilege belonging to Presidents that the Supreme Court has found derives from the Constitution's design of the Executive Branch and separation of powers, see Nixon v. GSA, 433 U.S. 425, 446-447 (1977) (GSA); Nixon, 418 U.S. at 708-with respect to fourteen Executive Branch officials. Mr. Trump's repeated assertion of the presidential-communications privilege as a basis to withhold evidence required extensive pre indictment litigation that delayed the Office's receipt of important testimony and other evidence, including testimony from senior White House staff and Executive Branch officials about topics such as Mr. Trump's knowledge that he had lost the election and the pressure campaign Mr. Trump waged against the Vice President to convince him to reject legitimate elector slates at the January 6 certification proceeding.

¶The courts uniformly rejected Mr. Trump's privilege assertions seeking to deny the grand jury from hearing evidence from Executive Branch employees, see Media Access ECF No. 32-2 (No. 22-gj-25, Memorandum Opinion, Sept. 28, 2022);²⁶²²⁶² "Media Access ECF" refers to previously sealed documents that were made public in redacted form in In re Application of the New York Times, 22-mc- I 00 (D.D.C.), litigation brought by the media for access to materials from the executive-privilege litigation. Media Access ECF No. 32-6 (Memorandum Opinion, Nov. 19, 2022); Media Access ECF No. 32-11 (No. 22-gj-39, Memorandum Opinion, Dec. 9, 2022); Media Access ECF No. 32-15 (No. 23-gj-12,

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¶Memorandum Opinion, Mar. 15, 2023); Media Access ECF No. 32-17 (No. 23-gj-13, Memorandum Opinion, Mar. 25, 2023), finding that the evidence was "directly relevant, important, and essential" to the Office's investigation, as well as unavailable elsewhere, e.g., Media Access ECF No. 32-15 at 33, 45. In each instance, the courts determined that the "importance and unavailability" of that "vital" evidence "outweigh[ed]" the qualified privilege for presidential communications and ordered that it be produced promptly to the grand jury. Media Access ECF No. 32-2 at 30. And when Mr. Trump tried to delay the investigation even further by seeking to stay orders denying his executive privilege claims pending appeal, district and appellate courts rejected all of them. In so doing, one court held that Mr. Trump was engaging in an "obvious" effort to delay the investigation and impede the grand jury from carrying out its constitutional responsibilities, Media Access ECF No. 32-4 at 6-8 (No. 22-gj-25, Memorandum Opinion, Oct. 6, 2022), and separately observed that staying proceedings risked indefinite delay, see Media Access ECF No. 32-8 at 9 (No. 22-gj-33, Memorandum Opinion, Dec. 18, 2022) ("The Court thus declines to further pause the grand jury's constitutionally protected work, particularly in the absence of any reassurance that the former president's delay tactics will cease."). Another court concluded that Mr. Trump's claim that the impact of delay on the investigation would be "nominal" was a "vast understatement," noting instead that it "would be ... serious and deleterious" and would "harm[] the public interest." Media Access ECF No. 32-16 at 34 (No. 23-gj-12, Hearing Transcript, Apr. 3, 2023).

¶The presidential-communications privilege covers evidence "that reflect[s] presidential decisionmaking and deliberations and that the President believes should remain confidential." In re Sealed Case,¹²¹¹²¹ See ECF No. 252 at 141 & n.653; SCO-00006256 at 163-166; SCO-00015002 at 37-38; SCO-00686662 at 117- F.3d 729, 744 (D.C. Cir. 1997). The law on the presidential communications privilege derives from the Supreme Court's decision in Nixon. There, the Court recognized a "presumptive privilege for Presidential communications," which it described as "fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." 418 U.S. at 708. But the Court held that the privilege is qualified, not absolute, id. at 706-707, emphasizing "our historic commitment to the rule of law," which is "nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer," id. at 708-709 (citation, quotations, and alterations omitted). Specifically, the Court "weigh[ed] the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice," id. at 711-712, and it concluded that "[t]he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial," id. at 713. The D.C. Circuit has applied the same general standard to grand jury subpoenas. See In re Sealed Case,¹²¹¹²¹ See ECF No. 252 at 141 & n.653; SCO-00006256 at 163-166; SCO-00015002 at 37-38; SCO-00686662 at 117- F.3d at 756.

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¶Most of the executive privilege litigation in this case took place in five sealed proceedings between August 2022 and March 2023 concerning the testimony of fourteen witnesses in total. See Media Access ECF No. 32 (notice attaching district court orders and memorandum opinions). In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump's, including by issuing subpoenas for testimony before the grand jury. See Media Access ECF No. 32-2. Although the Government believed it unlikely that the information that it sought from these witnesses was subject to the presidential-communications privilege because it did not concern presidential decision-making, in an abundance of caution given the unprecedented circumstance of investigating the former President, the Government made certain notifications to determine whether executive privilege would be a contested issue.

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¶Specifically, with the district court's permission, the Government notified Mr. Trump and the incumbent President about the subpoenas to ascertain whether either would assert executive privilege and identified certain potential topics of investigative inquiry.²⁶³²⁶³ See, e.g., SCO-11533730 (Letter to Trump Attorney) (identifying topics covering, among other things, potential fraud or irregularities regarding the 2020 presidential election, the January 6 rally at the Ellipse, the congressional certification on January 6, and co-conspirators). The Government chose to notify both the sitting and former Presidents even though it was unsettled under GSA whether a former President's view about potential harm to Executive Branch confidentiality interests could supersede the sitting President's. See GSA, 433 U.S. at 449. The incumbent President responded through the White House Counsel's Office that he did not intend to assert executive privilege.²⁶⁴²⁶⁴ See SCO-00007123 at 2 (Letter from the White House Counsel's Office to U.S. Attorney for the District of Columbia 06/27/2022). Throughout its existence, the Office conducted its work in full compliance with the Department's Policy on Communications with the White House. See, e.g., Memorandum from Merrick Garland, Attorney General, Department ofJustice Communications with the White House (July 21, 2021 ).Show full note Mr. Trump instructed the two witnesses that they should not provide testimony about any privileged communications, and he specifically identified the presidential communications privilege. See Media Access ECF No. 32-2 at 9-10.²⁶⁵²⁶⁵ See SCO-12921102, SCO-11545866 at 2 (Letters from Trump Attorney to Witness Counsel).

¶After the witnesses withheld testimony pursuant to Mr. Trump's instruction, the Government filed a motion to compel with the Chief Judge of the United States District Court for the District of Columbia. Given that the investigation focused largely on Mr. Trump's activities as a candidate seeking office, not his official activities as President, the Government believed that it was likely that many if not all the communications at issue were not subject to the presidential-communications privilege because they were not made in the process of arriving at presidential decisions. See Media Access ECF No. 32-2 at 17. As the Supreme Court has explained, the presidential-communications privilege "is limited to communications in performance of a President's responsibilities of his office and made in the process of shaping policies and making decisions." GSA, 433 U.S. at 449 (citation, quotations, and alterations omitted). But the Government's position was that the district court did not have to decide whether the communications at issue were subject to the privilege and instead could assume that the communications were privileged and find that the Government had overcome any privilege that would apply to presidential communications because it had made the showing of need for the evidence required under N;xon. Under D.C. Circuit precedent, to make the required showing of need, the Government had to establish that the testimony withheld by the witnesses likely contained important evidence that was not available to the grand jury with due diligence elsewhere. In re Sealed Case,¹²¹¹²¹ See ECF No. 252 at 141 & n.653; SCO-00006256 at 163-166; SCO-00015002 at 37-38; SCO-00686662 at 117- F.3d at 754.

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¶After briefing and argument, the district court granted the Government's motion to compel. See Media Access ECF No. 32-1 (Order, Sept. 28, 2022). The court found that the witnesses possessed "unique and inimitable evidence," Media Access ECF No. 32-2 at 28-29, that was "important and relevant to the grand jury's investigation," Media Access ECF No. 32-1 at 2. The court concluded that the witnesses possessed "vital evidence for the grand jury, the importance and unavailability of which outweigh the presidential-communications privilege in this case." Id. at 30. The district court subsequently denied a motion by Mr. Trump for a stay pending appeal. Media Access ECF No. 32-4 at 6-8 (No. 22-gj-25, Memorandum Opinion, Oct. 6, 2022); see Media Access ECF No. 32-3 (No. 22-gj-25, Order, Oct. 6, 2022). The court of appeals also denied a stay pending appeal and later dismissed the appeal as moot. See Docket, In re Sealed Case, No. 22-3073 (D.C. Cir. 2023).

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¶In the following months, the Government filed two more motions to compel testimony from three additional witnesses. See Media Access No. 32-6 (No. 22-gj-33, Memorandum Opinion, Nov. 19, 2022); Media Access No. 32-11 (No. 22-gj-39, Memorandum Opinion, Dec. 9, 2022). The district court granted the motions, making findings with respect to each witness that the Government had made a showing of need to overcome the qualified privilege for presidential communications. See Media Access ECF Nos. 32-5, 32-6 (No. 22-gj-33, Order and Memorandum Opinion, Nov. 19, 2022); Media Access ECF Nos. 32-10, 32-11 (No. 22-gj-39, Order and Memorandum Opinion, Dec. 9, 2022). The district court also denied stays pending appeals. See Media Access ECF Nos. 32-7, 32-8 (No. 22-gj-33, Order and Memorandum Opinion, Dec. 18, 2022); Media Access ECF Nos. 32-12, 32-13 (No. 22-gj-29, Order and Memorandum Opinion, Jan. 10, 2023).

¶After the appointment of the Special Counsel, it became clear-given the scope of the grand jury's investigation and the need to obtain evidence from a number of former Executive Branch officials-that seeking to compel testimony from one or two witnesses at a time would be inefficient and would unduly delay the investigation. The Office therefore decided to consolidate the proceedings to the extent possible and filed two additional motions to compel that covered the remaining eight Executive Branch officials who had communicated through their attorneys that they would withhold testimony from the grand jury based on executive privilege. The district court granted the motions, making findings with respect to each individual witness that, as noted above, they "possess[ ed] vital evidence for the grand jury, the importance and unavailability of which outweigh[ed] the presidential communications privilege." Media Access ECF No. 32-15 at 45; Media Access ECF No. 32-17 (No. 23-gj-13, Memorandum Opinion, Mar. 25, 2023). The district court also denied stays pending appeals. See Media

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¶Access ECF No. 32-16; Media Access ECF No. 32-18 (23-gj-13, Transcript of Hearing, Apr. 10, 2023). Subsequently, the court of appeals denied stays pending appeals in both cases, dismissed one of the appeals as moot, and granted Mr. Trump's motion to voluntarily dismiss the other appeal. See Docket, In re Sealed Case, No. 23-3043 (D.C. Cir. 2023); Docket, In re Sealed Case, No. 23-3049 (D.C. Cir. 2023).

Presidential Immunity

¶Before this case, no court had ever found that Presidents are immune from criminal responsibility for their official acts, and no text in the Constitution explicitly confers such criminal immunity on the President. As set forth below, prior criminal investigations by the Department of Justice, whether conducted through special prosecutors, independent counsels, or special counsels, had examined whether Presidents had violated federal criminal law through use of their official powers, and none of those investigations had regarded former Presidents as immune from criminal liability for their official acts. The Office proceeded from the same premise.

¶Soon after the original indictment issued in the Election Case, Mr. Trump raised a claim of immunity in a motion to dismiss the indictment. The district court denied the immunity motion, and the court of appeals affirmed. The Supreme Court, however, vacated the court of appeals' judgment based on its conclusion that Presidents have absolute immunity for core official conduct that Congress lacks power to regulate; at least presumptive immunity for other official presidential acts; and no immunity for unofficial conduct. The Court then applied that test to hold that certain conduct alleged in the indictment was immune, while remanding for application of its legal framework to the remaining allegations. Trump, 603 U.S. at 593. The Office responded by obtaining a superseding indictment to comply with the Court's decision and by seeking district court rulings that the charged conduct and expected evidence at trial was not shielded by immunity.

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¶This section summarizes the chronology of the immunity litigation and key findings of the courts throughout. Because the immunity litigation unfolded on the public record, this discussion provides an overview; the Office's briefs and judicial decisions contain more detailed analysis.