This week, special counsel Jack Smith served Ivanka Trump and Jared Kushner with subpoenas as part of his dual investigations into former President Donald Trump. The couple joins a growing list of high-profile members of Trump’s inner circle to be called in for questioning.
Ivanka Trump and Kushner have already testified before the Jan. 6 House select committee last year. Both were senior advisers to the former president and present at the White House on Jan. 6. Ivanka described a “pretty heated” phone call between her father and Mike Pence, allegedly about using Pence’s powers as president of the Senate to thwart the Electoral College vote count against Joe Biden. She also confirmed that she “accepted” former Attorney General Bill Barr’s assessment that no sufficient voter fraud took place in the 2020 election that would have impacted the outcome.
The couple could face even more questions about both investigations Smith is currently running: one into whether any person or entity unlawfully interfered with the transfer of power following the 2020 election, and the other into the trove of classified documents found at Trump’s Mar-a-Lago residence and office.
I asked Frank Bowman, a former federal prosecutor and a professor emeritus at the University of Missouri’s Columbia School of Law, what we might be able to expect from Ivanka Trump and Kushner’s testimony, and how it could influence Smith’s investigation.
Here’s our conversation, lightly edited and condensed for clarity:
Shirin Ali: Why do you think Ivanka Trump and Kushner were subpoenaed? Especially if they’ve already testified to the Jan. 6 House select committee.
Frank Bowman: We don’t know exactly why he wants to talk to the two of them. Presumably, they could, if they chose, offer considerable information about the events leading up to Jan. 6. That includes the effort to overturn the election, because they’re not only Donald Trump’s family members, but held positions within the White House and recently were around him.
Smith already has access to the information the couple provided to the Jan. 6 House committee, and he presumably has concluded that there are areas left for him to explore that were unresolved in their testimony. They’re potential witnesses to any criminal charges that might be contemplated, either against the former president or others around him. It’s pretty clear if you read Peter Baker and Susan Glasser’s book, The Divider, that Kushner was a source. They don’t say so, but it’s obvious he was—and whether his wife was or not isn’t clear. But it’s possible that Smith looked at that material, too, and compared it to the Jan. 6 House testimony and said, “There’s some things here I want to get some additional clarification on.”
For the effort to overturn the election, these two are obvious witnesses. One can say that Smith would be derelict in not at least attempting to secure their testimony, leaving everything else aside. They’re plainly insiders, privy to all sorts of information.
Which investigation—election interference or classified documents—do you think Ivanka Trump and Kushner will testify for?
It seems more likely to me that the couple will testify in relation to Smith’s investigation into Jan. 6, more so than the classified documents found at Trump’s property. Maybe Smith has some information suggesting that Ivanka was saying they are stuffing things in boxes? Or she loved to go to daddy’s office and laugh about the good times they used to have with classified materials. We know that Ivanka, in particular, was present in the White House on Jan. 6 and was being urged to do stuff to try to get her father to respond more quickly. We know that. We have the sense that the two of them were at least privy to information about other things that happened from Election Day to Jan.6. They plainly were witnesses to lots of things relevant to any case relating to Jan. 6—it would be prosecutorial malpractice not to at least get them as witnesses, if you could.
Do you expect the couple to cooperate and agree to testify?
There is no family privilege available to them by virtue of being related to President Trump. They might try to raise some variant of executive or presidential adviser–type privileges. But query whether such a privilege covers them at all. Even if it does, they’re going to have a little bit of a problem refusing, given that they’ve already testified to the Jan. 6 House committee. The prior testimony would probably act as a waiver of any new invocation of privilege as to subjects previously discussed. In any case, executive privilege would only cover some things and not others. Executive privilege is about the asserted right of the president to get honest, confidential advice from his close advisers and doesn’t cover things that you saw, know, or heard outside of that context, things that other people told you. Even if you’re trying to claim an executive privilege and have a relationship with the president that arguably entitles you to some coverage, it doesn’t cover everything. A blanket assertion of executive privilege legally can’t work.
It doesn’t mean they won’t do it or that they won’t stonewall any effort to talk; they may very well. At the end of the day, if the case is litigated through to its conclusion, they shouldn’t be able to have much success in asserting privilege.
Smith has issued at least 40 subpoenas, Ivanka Trump and Jared Kushner now joining that list. Do you think he’ll continue to subpoena more people from Trump’s inner circle?
I would expect him to subpoena anybody who he doesn’t think is a target. Now, the question becomes, is Smith willing to litigate refusals to testify to their conclusion, before he indicts? That’s the tricky bit. Kushner and Ivanka could file a motion to quash the subpoena they get from him or, even if they come in and testify, they may assert various privileges, validly or otherwise, to an array of stuff that Smith wants to know about.
Smith has said he wants to move quickly in both of his investigations. Do you think he’s moving fast enough?
I certainly approve of his determination to move this thing along. To the extent that his main focus here is whether or not people should be charged for the insurrection, we’re two years past the insurrection and the immediate post-election stuff. I think he needs to move this thing along and make decisions for all kinds of obvious reasons. That includes the fact that his mandate may not survive more than two years past the current moment. If Republicans were to win the White House come 2024, and Smith has indicted senior Republicans, including Trump, I don’t think there’s much doubt that, given the present tenor of the Republican Party, that Smith would be fired.
If prosecution is warranted for people who haven’t yet been prosecuted for the insurrection and if it doesn’t happen soon, it’s not going to happen at all—or it’s going to be ineffectual. The other problem is, even if you get the indictment tomorrow, getting that case to trial will take at least a year, which is insanely optimistic, just to get the bloody thing to trial.
So, is 2024 the realistic deadline for Smith?
I think the practical deadline for indicting, say, Donald Trump in particular, with any expectation you’re going to get him to trial, was yesterday. But certainly within the next couple of months, because it will take forever and he’ll file every motion imaginable. The discovery pretrial motion process will be extremely protracted. He’ll try to take interlocutory appeals all the way to the Supreme Court to prevent a trial from ever happening. Even if the efforts to do that are utterly frivolous, resolving them will take time. That’s the way the system works. Trying such a case would be a months-long process, at a minimum, and even if you get a conviction, there are going to be appeals and those will take a year or two. If you’re going to do this, you have to act almost immediately, and therefore Smith’s emphasis on speed is entirely appropriate.
Correction: This interview originally included a misquote that mischaracterized the nature of executive privilege.