One of the things that a few of us wrote about extensively – to no avail – in the last two years, especially during those periods in which Trump was claiming executive privilege, was the fact that every privilege can be waived. You have an attorney-client privilege in which you can tell your attorney anything and everything and no one can force you to testify about your conversations. But the moment you tell your best buddy about your conversation, you just waived your attorney-client privilege.

All privileges can be waived and one doesn’t get to pick and choose the information one wants out versus the information one wants hidden. Some of us were mystified that Trump would tell his version of things and then claim executive privilege when Congress sought to call that person as a witness.

Regardless, we have moved on from the Trump administration, and Norm Eisen, a much better attorney than most of us will ever be, is now finally addressing the reality that Trump faces, from CNN:

“The administration has waived executive privilege and allowed former Trump administration officials to provide testimony to Congress about the ex-president’s attacks on the 2020 election and its certification. The US Department of Justice correctly reasoned that the ‘extraordinary events in this matter constitute exceptional circumstances … [and] the congressional need for information outweighs the Executive Branch’s interest in maintaining confidentiality.’

 “If Trump tests the committee in court, he will find that the law of executive privilege is not in his favor. So, Trump could go to court and seek an injunction, arguing that he’s the owner of the privilege. But the tenor of the law makes it likely that he would lose — which may be why Trump did not attempt to stop those former officials from testifying in the first place.”

For what it’s worth, we’re of the opinion that Eisen is on shakier ground here. Yes, the executive privilege belongs to the nation, but it isn’t worth all that much if a president has to worry that the moment he or she is out of office, that every conversation and memo can be disclosed. We suspect that the courts will still protect some conversations. But, given that Trump himself has discussed these conversations openly with many in the media, especially regarding the Big Lie, he may find that privilege waived away.

“The general rule is that the privilege belongs to the nation, not to any former incumbent — and the Biden administration has already demonstrated its inclination to waive. Together with the demands we learned about earlier this week for phone and other records from telecom and social media companies, all of that makes it likely that the truth will be uncovered. Private companies are not going to fool around either.”

It is true that the DOJ has said that anyone in the Trump administration is free to testify. But that is not the same as Trump filing suit to have a court say that the privilege remains intact. The better argument is that Trump himself blew it, as we see below.

“A common investigative adage is ‘follow the money.’ Here, Congress should follow Trump’s lies, especially the big lie that the election was stolen. The 1/6 committee is off to a good start doing just that, and there is ultimately little that Trump will be able to do to stop it.”

There you go. Follow one lie after another, proving that Trump himself has already waived all these privileges by being out front talking about it, denying his involvement, lying, never shutting up…

They do have him right where they want him.

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