As former President Donald Trump continues to paint himself in a corner with his variety of legal lawsuits and defenses, he is running out of time to try to convince the legal system once again that he can use executive privilege to toss out conversations between him and former Vice President Mike Pence.
With special counsel Jack Smith serving Pence with a subpoena, MSNBC columnist Steve Benen said that Trump will try his previously failed strategy of a former President claiming executive privilege that was denied during the House Jan. 6 Committee's investigation.
"To be sure, it seems very likely that Trump will try to invoke executive privilege, in large part because the former president has reason to be terrified of what Pence might tell prosecutors. That said, Trump’s earlier executive privilege claims haven’t gone especially well," Benen wrote.
Even an appeal attempt was declined by the Supreme Court with only Trump-sympathizer Justice Clarence Thomas voting to hear the appeal case.
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One glimmer of hope for Trump is that Justice Brett Kavanaugh has hinted that he would support the new legal defense that a former president can claim executive privilege.
That glimmer of hope is 'tricky' as subpoena noncompliance was part of the legal strategy employed by former President Richard Nixon as an alternate option of admitting guilt, so it is not a precedent that puts Trump in the best long-term legal position.
Any sources that can provide information not available from any other potential witnesses will not be subject to executive privilege and furthermore are high priority witnesses. This was proven with former Pence aide Marc Short, who was interviewed as a witness during the Department of Justice's criminal investigation because of his exclusive knowledge on Jan. 6 from both internal communications and witnessing the insurrection firsthand.
That same legal rationale makes it obvious to see why Pence is almost destined to have to provide testimony and Trump's attempts to invoke executive privilege will fail.
