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Judge bucks Trump, orders Pence aide to testify to Jan. 6 grand jury

The appeals court refused to postpone testimony Thursday by Marc Short, dealing a blow to the former president’s claim of executive privilege and potentially clearing the way for other former top Trump aides to testify

Vice President Mike Pence and President Donald Trump at a campaign rally in Grand Rapids, Mich., in 2020. (Evan Vucci/AP)
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A former top aide to Vice President Mike Pence returned before a grand jury Thursday to testify in a criminal probe of efforts to overturn the 2020 election after federal courts overruled President Donald Trump’s objections to the testimony, according to people familiar with the matter.

In a sealed decision that could clear the way for other top Trump White House officials to answer questions before a grand jury, Chief U.S. District Judge Beryl A. Howell ruled that former Pence chief of staff Marc Short 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, one of those people said.

Trump appealed, but the U.S. Court of Appeals for the District of Columbia Circuit refused to postpone Short’s appearance while the litigation continues, the people said, signaling that attempts by Trump to invoke executive privilege to preserve the confidentiality of presidential decision-making were not likely to prevail.

The people spoke on the condition of anonymity to discuss an ongoing investigation.

Short on Friday declined to comment about his court appearance, which stretched through much of the day. His attorney, Emmet Flood; an attorney for Trump, John P. Rowley III; and a Justice Department spokesman declined to comment.

Grand jury matters are typically secret, but The Washington Post has reported that prosecutors are working with grand jurors and looking extensively at the actions of Trump and his advisers in the period between the November 2020 election and Jan. 6, 2021. Short’s case came to light on Sept. 22 after Trump attorneys M. Evan Corcoran, Timothy C. Parlatore and Rowley were seen at federal court in Washington when there were no publicly scheduled matters, along with a lead Jan. 6 federal prosecutor, Thomas Windom.

According to people familiar with the matter, Short had appeared before a grand jury in downtown Washington in July, but declined to answer certain questions after Flood argued the communications of top White House advisers are protected — and presented written documentation from Trump’s lawyers that they were asserting executive privilege.

The Justice Department asked the court to intervene, urging Howell to override Trump’s claim and to compel Short to answer questions about his communications with Trump, one person said. After arguments Sept. 22, Howell granted the government’s motion, the people said, but because the investigation and an appeal are ongoing, it is unclear if or when a redacted opinion will become public.

Short and Windom were spotted at court again Thursday, as was former Trump national security and defense aide Kash Patel.

Justice Dept. investigating Trump’s actions in Jan. 6 criminal probe

The executive privilege battle caps the latest high-stakes confrontation between the Justice Department and Trump. Prosecutors have asked numerous witnesses about their conversations with Trump and other associates who sought to substitute Trump allies for certified electors from some states Joe Biden won, and to pressure Pence to overturn the results of the election, people familiar with the matter have said.

Those inquiries are separate from the investigation into classified documents recovered from Trump’s Mar-a-Lago home, which has triggered separate legal fights over issues of executive and attorney-client privilege.

On Thursday, the House Jan. 6 select committee voted unanimously to subpoena Trump himself to testify before legislators, potentially triggering another clash.

The fight over Short’s testimony also throws another twist into the complicated relationship between Trump and Pence. On Jan. 6, Trump encouraged an angry mob chanting “Hang Mike Pence” to go to the Capitol and later accused his vice president of lacking “courage” to overturn the results.

Short and Pence lawyer Greg Jacob may have key insights on that effort. Both were with Pence on Jan. 6 at the Capitol. With Pence’s approval, both testified to the House select committee investigating the events, although the former vice president declined to do so himself. Jacob also told the committee that two days before the riot, private Trump attorney John Eastman conceded that the plot to have Pence help overturn the election was illegal.

Other senior Trump White House officials could also be affected by the outcome of the court ruling involving Short. Former Trump White House counsel Pat Cipollone and his deputy, Pat Philbin, appeared before the Jan. 6 grand jury in early September, spending about four hours behind closed doors with grand jurors. It is not known whether they declined to answer any questions citing a Trump invocation of privilege, or whether prosecutors have objected.

Cipollone, the top White House lawyer at the end of the Trump administration, has emerged in several public accounts as a key witness to and critic of conversations held by Trump with others promoting plans to upend election results.

In videotaped testimony played at televised House hearings this summer, Cipollone said he vigorously resisted such efforts, and that he and former Trump attorney general William P. Barr did not believe there was sufficient fraud to have affected the outcome of the presidential election in any state.