Donald Trump has a new pending criminal charges headache.

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Former President Donald Trump once promised that, under him, his supporters would “get tired of winning.” He shouldn’t be talking about it in the courtroom. On Friday it was reported that Trump suffered another devastating judicial defeat in his campaign to block various criminal investigations targeting him. DC District Judge Beryl Howell rejected her claim of executive privilege to prevent her former chief of staff Mark Meadows and other top aides from testifying in special counsel Jack Smith’s investigation on January 6.

In fact, it may have been the most expensive moment in Trump’s long losing streak against Smith, greatly increasing the likelihood of federal charges against the former president.

Meadows’ testimony was very important. He was one of several staffers in constant contact with Trump on January 6 as the siege unfolded. And in the weeks leading up to January 6, according to NPR, Meadows “was at the very center of Trump’s plans to overturn his defeat in the presidential election”.

For example, Meadows traveled to Georgia, ostensibly on Trump’s behalf, on December 22, 2020, and was apparently involved in setting up Trump’s call the next day with the state’s chief election investigator, Frances Watson. That call was taped, as was Trump’s infamous call on January 2, 2021, to Brad Raffensperger, the secretary of state of Georgia, in which Meadows participated. (Fulton County District Attorney Fani Willis is also investigating those incidents.)

Meadows also had important testimony about Jan. 6 itself. Evidence gathered by a House committee on January 6 showed that he had advance intelligence about impending violence. If so, Smith would want to know about any discussion with Trump about those early warnings.

Also, Smith will surely seek Meadows’ testimony about a damning conversation Cassidy Hutchinson, Meadows’ aide, testified to in Congress. He said Meadows told him that Trump, upon hearing the insurrectionists chant “Hang Mike Pence!,” replied that Pence “deserves it.”

In addition, Meadows withheld about 1,000 text messages subpoenaed by the committee on Jan. 6, after providing more than 2,300 others. The committee shared the documents it received with the special counsel, and he’s sure to want those additional cryptic messages, along with Meadows’ testimony about them. (Meadows declined to testify before the committee on Jan. 6, making an executive privilege claim similar to the one now rejected in court.)

As for Howell’s decision that Meadows and the others should testify, we don’t know his exact reasoning because his decision is sealed. But we know its foundations.

In a 1977 case involving former President Richard Nixon after he left the White House, the Supreme Court held that the incumbent president who succeeded him “is in the best position to assess the present and future needs of the Executive Branch” in deciding whether the privilege applies. Trump’s successor, President Joe Biden, continued to refuse to support Trump’s January 6 privilege claims.

In January 2022, the Supreme Court rejected those claims when Trump unsuccessfully sought to block the release of White House documents to the committee on January 6.

In another Supreme Court decision involving Nixon, the famous “White House tapes” case in 1974, the court held that “the general assertion of Presidential privilege must give way to a demonstrated, specific need for evidence in a pending criminal trial.”

Although this criminal trial is not yet pending, we have a particular need here in spades. Indeed, another federal judge found that Trump, “more likely than not,” conspired to defraud the United States in connection with an effort to persuade then-Vice President Mike Pence to deny the electoral votes of some state, and also conspired to obstruct Congress in Jan. 6. There are also crimes for which the January 6 committee issued criminal referrals to the Department of Justice, such as inciting, aiding, and abetting insurrections.

Trump is expected to appeal, as usual. Although his prospects are bleak given the precedents, appeals may take some time.

Then again, it took less than a day for the US Court of Appeals for the District of Columbia Circuit this month to reject another appeal by Trump to prevent his lawyer Evan Corcoran from giving evidence about the documents probe of Smith’s Mar-a-Lago. It seems clear that judges are losing patience with the former president’s dilatory litigation tactics.

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In any case, Smith’s focus on Meadows suggests the special counsel is preparing for his end game. In conspiracy cases, prosecutors proceed first to gather evidence from the least culpable witnesses and last to gather evidence from those most culpable and closest to the target of the investigation.

As for Meadows’ endgame, with executive privilege off the table, his most likely way to block the inquiry is the Fifth Amendment. Based on what we know from the January 6 committee’s extensive public record, Meadows has his own serious criminal exposure.

If Meadows invokes his right to remain silent, the DOJ will decide whether to compel his testimony by granting him immunity. Such awards remove the criminal exposure of a witness and therefore his right to remain silent.

Regardless of Smith’s decision, he now has the power. He has shown that he chooses his battles wisely, only starting battles in which he is confident that he will prevail. The special counsel never seems to tire of winning in his relentless investigation of Donald J. Trump.

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