In a fervent attempt to keep his post-election activities secret, Donald Trump filed a lawsuit weeks ago, requesting a court-ordered injunction based on executive privilege. Trump sought to protect himself and his closest confidantes from the House Select Committee’s investigation into his post-election actions, and January 6th in particular. The executive privilege claim underlying that lawsuit took a big blow on Tuesday when it was revealed that the Trump campaign itself paid significant expenses run-up by Bernard Kerik and Rudy Giuliani within his “command center” in the Willard Hotel near the White House.
According to the Washington Post, Kerik and Rudy Giuliani spent much of November and December 2020 frantically traveling the country searching for evidence of election fraud, then reconnoitering back at the lovely and costly Willard Hotel, two blocks from the White House. Kerik – rightly – worried about whether he would ever be reimbursed for his expenses. According to the Post:
The bills went unpaid until after Fox News personality Jeanine Pirro went to bat on their behalf, according to a Republican official, who like some others interviewed for this article spoke on the condition of anonymity to discuss private conversations. Soon after, the campaign cut Kerik a check — with Trump’s approval, according to a former senior campaign official.
That move, in mid-December, smoothed the way for what would eventually be more than $225,000 in campaign payments to firms owned by Kerik and Giuliani — including more than $50,000 for rooms and suites at the posh Willard hotel in Washington that served as a “command center” for efforts to deny Biden the presidency in the days leading up to the attack on the Capitol on Jan. 6.
The payment itself evidences nothing more than reality. Trump’s assertion of executive privilege isn’t some magnanimous or principled stand on behalf of the executive Article II branch. When one is doing honest government work utilizing government personnel to further some sort of legitimate government concern, one doesn’t cover the expenses with campaign cash. The executive privilege claims look to be nothing more than an all-too-typical Trump attempt to keep his real life and activities secret.
The new finding is an even bigger problem for Trump because the people who received the money happen to be of the Committee’s principal targets. The committee members look to be honing in on the material and testimony needed.
The requests specifically name dozens of people, including Kerik, Giuliani and others who were present in the Willard command center, such as former White House strategic adviser Stephen K. Bannon and legal scholar John Eastman. Eastman wrote two memos, laying out legal arguments for Vice President Mike Pence to either reject Biden’s electoral votes on Jan. 6 or delay certifying the results so that states could conduct further investigations.
Legitimate claims for an injunction based upon privilege are, by necessity, a balancing test between the competing values. Courts evaluate the need to get at the truth versus the need to promote free and frank communication within certain contexts, this one being the executive branch. The fact that the campaign ended up paying for what the Trump team called “the command center” weighs like a lead brick on the scale. Entire treatises have been written on the need and means to keep campaign activities (and especially money) separate from legitimate government functions.
But one doesn’t need a treatise to understand that if the campaign is paying for Kerik and Giuliani’s whirlwind tour, they were not performing some sort of executive function. This was personal to Trump. Trump, in his role as a candidate, personally paid. And executive privilege doesn’t apply to a person, it applies to an office.
The Trump campaign just handed the select committee evidence that is far more valuable than the six-figure check.
Jason Miciak is a political writer, features writer, author, and attorney. He is originally from Canada but grew up in the Pacific Northwest as a dual Canadian-American citizen, which he grows increasingly thankful for every day. He now enjoys life as a single dad, writing from the beaches of the Gulf Coast, getting advice from his beloved daughter and teammate. He is very much the dreamy mystic that cannot add and loves dogs more than most people. He also likes studying cooking, theoretical physics, cosmology, and quantum mechanics. He likes pizza.
Please visit his Substack Newsletter, get the first month free: Much Ado About Everything: By Jason Miciak