6 min readNov 14, 2021

14 NOVEMBER 2021

Former Trump Chief of Staff Mark Meadows was subpoenaed to appear before the Jan. 6 Commission to give testimony relating to events that culminated in the attack on the Capitol. Meadows was a no-show. Even if Meadows had a legitimate basis to invoke executive privilege in answering the Jan. 6 Commission’s questions, which he did not, he is nonetheless in contempt of congress by failing to appear in response to the subpoena (per Daniel Goldman).

Trump and members of his former administration are using executive privilege, a protection that belongs exclusively to the Office of the President which Trump does not occupy, to hide evidence of what may be — and has all the appearances of — the most serious crimes any president could commit against the United States.

On November 13, 20211, the Washington Post published an opinion piece by Mark Meadows’ lawyer George J. Terwilliger III, In abandoning executive privilege, Biden rejects 200 Years of history.

Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

Terwilliger says:

“As counsel for former White House chief of staff Mark Meadows, I was surprised and disappointed to receive a letter Thursday informing me that the Biden administration will be the first in history not to resist a congressional subpoena for testimony from a senior White House aide.

“ . . . Congress’s refusal to work out an accommodation and the Biden administration’s acquiescence fly in the face of 200 years of history — a history of dealing with these disputes by finding a middle ground.”

Terwilliger gives a history of executive privilege from George Washington to the present and its rationale — “it helps ensure, both now and in the future, that the president can benefit from the most candid advice.” He cites to a Department of Justice Office of Legal Counsel opinion from 1999 in which “Janet Reno likened such compulsion ‘to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions.’”

There’s the rub. Terwilliger appears to be saying, with a straight face, the Jan. 6 Commission is investigating Trump and others “on matters relating to the performance of his constitutionally assigned executive functions”?

Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

Trump is a singular outlier in the 200-year history referenced by Terwilliger. Decimating the rule of law, Trump and his administration pushed through every conceivable fortification of government institutions and their legally mandated oversight of the executive. They exposed serious gaps in the protections meant to sustain the constitutional republic, free and fair elections, and the peaceful transition of power. If we maintain the status quo in the face of such serious conduct, the country will never fill those gaps and refortify government institutions against such conduct from rogue executives in the future.

Terwilliger is correct about one thing. The rationale for the executive privilege is to afford the privilege holder the benefit of “the most candid advice,” and in this context, solely “on matters relating to the performance of his constitutionally assigned executive functions.” Lack of assurance that strict confidentiality will be maintained seriously chills the flow of information between the privilege holder and those from whom s/he seeks candid advice “on matters relating to the performance of his constitutionally assigned executive functions.”

The law is all about drawing lines between what is constitutional, what is legal, and what’ isn’t. Privileges balance interests between privilege holders’ need for candid and accurate advice and the public’s or fact finders’ need to know. While privileges are important to encourage candid exchanges between client and attorney, patient and doctor, penitent and priest, and president and advisors, privileges prevent fact finders from getting to the truth. For that reason, courts routinely construe such privileges narrowly.

In many contexts privileges are not absolute. I am most familiar with the attorney-client privilege. As a criminal defense attorney, I do not sit in judgment of my clients. Depending on the nature of the alleged crime, I often encourage full and candid disclosure, with the assurance that their secrets are safe with me, which places me in the best position to advise my clients.

Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

A well-recognized exception to the attorney-client privilege is known as the crime/fraud exception. Communications between client and attorney are not privileged if made with the intention of committing fraud or covering it up. The communication won’t be privileged if made while the client was in the process of committing or had the intent to commit fraud, and the communication with the lawyer was with the intent to further the fraud or cover it up. Courts usually recognize the exception regardless of whether the attorney knew of or participated in the fraud, and whether the conduct was in fact a crime.

The exception applies only to those communications that narrowly fall within the exception. It does not apply to all communications between attorney and client. Likewise, even if Trump continued to hold the office to which executive privilege applies, which he does not, the Jan. 6 Commission’s inquiry could — and should — be expressly limited to the scope of the commission’s mandate.

United States v. Nixon, while not directly on point, shares some characteristics. Unlike Trump, Nixon was still in office when special prosecutor Leon Jaworski caused a grand jury to subpoena the Nixon tapes and Nixon invoked executive privilege. Ruling against Nixon, a unanimous Supreme Court held (from the syllabus):

“Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, . . . when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.

“Since a President’s communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian.”

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to and Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in and are hers.




Exercising my right not to remain silent. Criminal defense and First Amendment attorney.