A new Senate report released last week highlights just how dangerous former President Donald Trump’s subversive plot in January actually was. But was America ultimately saved, as some have been quick to argue, by the courageous acts of Justice Department officials who threatened to resign if Trump followed through with his plans?
Hardly. These DOJ officials are no heroes. They may have stopped Trump from overthrowing the results of the 2020 presidential election, but they fell far short of what we should expect from public servants of integrity.
They may have stopped Trump from overthrowing the results of the 2020 presidential election, but they fell far short of what we should expect from public servants of integrity.
Last week, the Senate Judiciary Committee issued a report called “Subverting Justice: How the Former President and His Allies Pressured DOJ To Overturn the 2020 Election.” The report details how Trump pressured Justice Department officials on (at least) nine occasions to undermine the results of the presidential election. The efforts culminated in a three-hour meeting in the Oval Office on Jan. 3, during which several officials threatened to resign if Trump followed through with his plan.
At the meeting, the group discussed a proposal to send letters signed by the acting attorney general to several states. Those letters would provide states with legal advice about how to potentially change the outcomes of their elections; all of the intended recipients were states where Joe Biden won by narrow margins. According to the plan, these states could proclaim fraud, invalidate the results of their elections and allow their Republican-controlled legislatures to decide the winner of the presidential election instead, resulting in a victory for Trump.
Acting Attorney General Jeffrey Rosen, acting Deputy Attorney General Richard Donoghue and Assistant Attorney General Steven Engel all threatened to resign if this scheme were carried out. They warned that other DOJ officials would likely follow their lead, including U.S. attorneys around the country. White House counsel Pat Cipollone called the plan a “murder-suicide pact” and said he, too, would resign. And so would his deputy, Patrick Philbin. Acting Assistant Attorney General Jeffrey Clark, who was also at the meeting? Not so much — he was the letter’s author. More on him later.
Trump put on the brakes only because he faced the spectacle of mass resignations. And let’s give credit to these Trump administration lawyers for doing the right thing in that moment. They also appear to have been truthful and forthcoming in their testimony to the Senate committee about these events. But before we go erecting statues in their honor, let’s also note how they came up woefully short.
Where were they in January, when the House of Representatives impeached Trump and accused him of abusing his office to “subvert and obstruct the certification of the results of the 2020 Presidential election”? The House voted to impeach Trump on Jan. 13. If Rosen and the others really had been acting in the best interests of the country, they would have shared the relevant and damning events that had occurred only 10 days earlier.
I suppose they may have rationalized their silence by fearing that Trump could invoke executive privilege to shield their conversations from disclosure, making their efforts to come forward futile. Trump was still in office on Jan. 13, of course, and would remain in power until his term expired on Jan. 20.
I suppose they may have rationalized their silence by fearing that Trump could invoke executive privilege to shield their conversations from disclosure.
But that rationale grows even weaker in February, when the Senate began its impeachment trial of Trump. By then, Trump was out of office and Biden had become president, assuming the authority to invoke or waive executive privilege. Executive privilege exists to benefit the presidency and the nation, not any individual president. As the Supreme Court held at the time of the Nixon Watergate investigation, executive privilege is not absolute, and it must yield when it is outweighed by a more compelling interest.
While a former president can recommend that certain communications be protected from disclosure, it is the current president who decides whether disclosure is in the best interest of the nation. As Rosen, Donahue and others well knew, Biden could have — and likely would have — waived the privilege to allow them to testify at the trial. If they had come forward and shared their knowledge with the Senate, which failed to muster enough votes to convict Trump, the results of the trial might have been remarkably different.
Perhaps these DOJ officials felt that even if executive privilege did not shield their conversations, then attorney-client privilege barred them from testifying. But again, that would be wrong. The attorney-client privilege has an exception when the communications in question enable fraud or crime. As the Supreme Court stated in a 1989 case, the interest of public policy does not allow criminals to weaponize the attorney-client privilege by using it as cover for conversations about plans to commit criminal misconduct. So, despite no ethical obligations to protect the disclosure of their conversations with Trump about undermining the election, Rosen, Donoghue, Engel, Cipollone and Philbin chose to conceal them anyway. If they had talked, we also would have learned earlier about Clark’s role in this scheme. The report says he met personally with Trump, in violation of DOJ policy about communications with the White House. He pushed Rosen and Donoghue to announce that DOJ was investigating election fraud in key swing states. He drafted the letter advising the swing states how to select alternate electors who would vote for Trump. He told Rosen that Trump would fire him and install Clark as acting attorney general, a threat that Trump repeated at the Jan. 3 meeting. To date, Clark has refused to provide testimony to the Senate Judiciary Committee. What other information could Clark reveal if he chose to put country before party or, in his case, self? The consequences of this silence will continue to ripple out for years. Had the Senate voted to convict Trump, he could have been barred from ever seeking elected office again. That would preclude Trump from running for president in 2024, and it would likely weaken his influence among candidates seeking to curry his favor by appealing to the worst instincts of his base. So do not rush to praise this White House “last stand.” For these officials, the test of their integrity came not in the Oval Office, but in their absence in the weeks that followed. They failed the test, and they failed us.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
