Marc Short, former chief of staff to Vice President Mike Pence, testified before a grand jury last Thursday just hours after a federal appeals court panel rejected a last-ditch appeal by Trump lawyers seeking to raise executive privilege concerns about the appearance.
After a rushed series of filings, three D.C. Circuit Court of Appeals judges — Karen Henderson, Robert Wilkins and Florence Pan — turned down the emergency stay request at about 7 p.m. on the evening before Short testified, according to a court docket POLITICO reviewed that reflects the closed-door legal battle.
Trump’s team could have sought relief from the Supreme Court following that rejection, but such an application has yet to be filed in the dispute.
The appeals court panel’s ruling was the result of a four-month fight that was initiated on June 10 over testimony related to grand jury subpoenas pertaining to the investigation into the Jan. 6, 2021, attack on the Capitol. That fight began around the same time Short first appeared before federal investigators. But it accelerated rapidly on Sept. 28, when Howell ruled against Trump. The nature of the ruling remains sealed but it pertained to two grand jury subpoenas that Trump had challenged.
The identity of the recipients of those subpoenas is not clear, though the timing suggests they were connected to testimony from Short and Greg Jacob, Pence’s chief counsel.
POLITICO moved to unseal Howell’s Sept. 28 ruling and related filings last week. On Wednesday, Howell ordered the Justice Department and Trump attorneys to respond to that motion by Nov. 15. The New York Times filed a similar unsealing motion on Friday.
The Washington Post first reported on the appeals court ruling, but the identity of the judges who decided the matter and the precise timeline of Trump’s secret battle has not previously been reported. CNN first reported that Jacob, too, was the subject of Howell’s September ruling and Trump is mounting a separate challenge to potential testimony by former White House Counsel Pat Cipollone and his then-deputy, Pat Philbin.
Short was at the courthouse for more than three hours on Oct. 13, but had little to say to reporters as he left. “I got nothing to offer you,” he said. He did not respond to subsequent requests for comment.
The rejection of Trump’s attempts to block testimony from his former White House aides was just the latest snub handed to him by the federal courts.
Just a few hours after Short left court, the Supreme Court — without any noted dissent — rebuffed Trump’s first effort to involve the justices in the separate criminal investigation into his storage of White House records at his Mar-a-Lago estate in Florida.
That defeat followed other high court rebuffs of Trump dating back to the 2020 election, as well as rulings that cleared the way for local prosecutors in New York to obtain his financial records and for House investigators to get White House records relating to Jan. 6.
The legal clash around Short’s testimony intensified after Howell issued a sealed ruling against Trump on Sept. 28, court records show.
Howell’s ruling dismissed attempts by the former president to postpone the hearings while claims of executive privilege were litigated. It came just six days after three of Trump’s attorneys visited the federal courthouse to plead their case. Their exit from the building following their Sept. 22 appearance was captured by photographers camped out outside.
Howell’s ruling effectively compelled Short to testify. Short had previously appeared for questioning by federal prosecutors in June pursuant to a grand jury subpoena, but he limited his testimony to avoid immediate questions about Trump’s claims of privilege.
On Oct. 11, two weeks after Howell’s order, Trump sought an emergency stay of her decision from the D.C. Circuit Court of Appeals. Henderson, Wilkins and Pan demanded a response of up to 5,200 words to that motion from the Justice Department by 4 p.m. on Oct. 12, an unusually rapid timetable even for emergency motions.
Henderson was appointed by President George H.W. Bush. Wilkins and Howell are appointees of President Barack Obama. Pan is the D.C. Circuit’s newest judge, appointed by President Joe Biden.
The appeals court’s docket gives no indication that any judge dissented from the ruling last week. Asked about the matter the following day, a court clerk said the panel’s order on the emergency stay remained under seal.
All of the parties’ filings before the appeals court panel also remain under seal. Trump’s appeal remains pending, so he could still ask the D.C. Circuit to dive into the legal issues and produce a formal ruling on whether he has a right to block testimony from other White House aides or advisers. He may still take the emergency matter to the Supreme Court to prevent additional witnesses from testifying.
A spokesperson for Trump declined to comment. The Justice Department also declined to comment.
The secret legal battle appears similar to one fought in 2018 against then-special counsel Robert Mueller’s team. Back then, a company facing a grand jury subpoena fought efforts to comply with a subpoena for records sought by Mueller’s prosecutors.
Due to extraordinary efforts to maintain secrecy around the dispute, many details of it remained under wraps for about two years, but it was disclosed that a judge imposed a $ 50,000-a-day contempt fine against the then-unknown party resisting the subpoena.
The fight eventually reached the Supreme Court, but the justices declined to enter the dispute. In 2020, CNN reported that the battle was related to an investigation Mueller conducted into a potential transfer of funds to the 2016 Trump campaign from a state-owned Egyptian bank. Mueller eventually handed off the inquiry to other prosecutors, CNN said, but no charges were ever brought.