The
Law Requires Pat Cipollone to Answer the Jan. 6 Committee’s Questions
July 5, 2022
Now that Pat Cipollone, Donald Trump’s last
White House Counsel, has received a subpoena for testimony from the January 6
Select Committee, he faces two key decisions. He must first decide whether to
appear at all. If he does appear, he must then decide whether he should refuse
to answer certain questions by asserting legal privileges. In my view,
Cipollone has no valid legal basis to refuse to appear—and once in the witness
chair, there are no valid claims of privilege that would permit him to refuse
to answer questions relating to matters the committee is investigating.
Decision Point 1:
Whether to Appear Before the Committee
Starting with the first decision, there is no
proper basis for Cipollone to refuse to appear. Given the nature and gravity of
the offenses that the January 6 committee is investigating, a failure to appear
would rank as a disgraceful dereliction of duty. That is particularly true in
light of the extraordinary testimony offered by former White House aide Cassidy
Hutchinson. Under oath, she stated that Cipollone warned his
colleagues that if the mob marched to the Capitol, “We’re going to get charged
with every crime imaginable.” The committee has the right to explore whether he
made this comment just to a relatively low-level staffer—which seems
unlikely-or whether he similarly warned Trump and his close associates. The committee
has also heard testimony that Cipollone described a
proposed letter from Jeffrey Clark (initially supported by Trump) as a
“murder-suicide pact” that would “damage everyone who touches it.” Because
Cipollone’s own conduct is squarely at issue—and because he had unique access
to Trump throughout the fraught period under investigation—the committee can
very easily establish a legitimate and legally compelling basis to obtain his
testimony.
To be sure, the Justice Department’s Office of
Legal Counsel has sometimes opined that high-ranking officials enjoy immunity
from appearing in response to congressional subpoenas. But DOJ itself has
repudiated that position, in significant part, by prosecuting former Trump
administration official Peter Navarro for criminal contempt of Congress. The
fact that the Justice Department gave Mark Meadows a pass may be due to the
amount of assistance he provided the committee. A former staff member of the
committee, Denver Riggleman told CNN’s Anderson Cooper, “Mark Meadows
is the MVP for the Committee. I think they should pay him. The data that we got
from there actually allowed us to structure an effective investigation.”
What’s more, courts have consistently displayed skepticism of
absolutist and categorical claims that White House officials enjoy
comprehensive immunity from appearing when subpoenaed. That skepticism applies
with added force here, given that Cipollone is a former White
House official. Indeed, a district court held only a few years ago that former
White House Counsel Don McGahn did not enjoy absolute immunity from a
congressional subpoena – concluding that the assertion of immunity was
“baseless, and as such, cannot be sustained” — and McGahn eventually appeared
for a transcribed interview.
If Cipollone were to
ignore the January 6 Committee’s subpoena, he would do so at his own peril.
Cipollone is not a current White House official. He is a lawyer in private
practice at the height of his career. Defying a subpoena would present a risk
of a criminal indictment for contempt of Congress—a fate that has already
befallen both Navarro and Steve Bannon, and that includes the real possibility
of jail time (the obstruction charge carries with it a mandatory one-month
minimum sentence). Even if DOJ did not pursue an indictment for criminal
contempt (a choice it has made thus far for Meadows and Dan Scavino), the
committee could consider filing a civil lawsuit seeking to compel his testimony
on a highly expedited basis.
More broadly, if Cipollone refused to appear,
he would properly face professional consequences. His future pro hac
vice and bar admission applications may face opposition; he may lose
the trust and confidence of judges and other authorities before whom he
appears; clients may come to doubt his integrity; and many fellow lawyers may
view him as a willful co-conspirator in a plot against our democracy or at
least in its coverup.
Simply put, a decision
not to appear before the committee would be legally baseless, professionally
disreputable, and personally risky. The committee is not going to let this
slide. Cipollone is an especially key witness in one of the most important
investigations ever undertaken by the Congress. He must appear under oath.
Decision Point 2:
Answering the Committee’s Questions
If Cipollone makes the
rational decision to appear for a deposition, the next question is whether he
can claim any valid privileges against the questions he will be asked.
Depending on what his testimony would be, it is perhaps theoretically possible
that Cipollone might consider invoking his Fifth Amendment right against
self-incrimination, though that would itself be a damning act and inconsistent
with his earlier agreement to meet informally with the committee. Putting aside
an assertion of Fifth Amendment, which seems practically inconceivable, there
is no good faith basis for him to refuse to answer the committee’s questions on
any assertion of a legal privilege.
The most
straightforward evidence for this conclusion is that many other Trump administration
lawyers have already appeared before the committee and testified to their
discussions with Trump. Former Attorney General William Barr, former Acting
Attorney General Jeffrey Rosen, former Acting Deputy Attorney General Richard
Donoghue, and former Assistant Attorney General Stephen Engel, among many other
attorneys well versed in the law of privilege, have all appeared publicly to
testify about their interactions with (and provision of legal advice to) Trump.
Former White House lawyer Eric Herschmann has also appeared and testified about
his communications with Trump. Also important, these senior officials testified
about what Cipollone himself said in these meetings.
As noted above, Cipollone (as well as his
deputy Pat Philbin) met with the Committee, reportedly back in April, to speak
informally about the issues under investigation. Under these circumstances, it
would be exceedingly unconvincing for Cipollone to maintain that he is now
precluded from offering full testimony.
There are many good
and overlapping reasons why Barr, Rosen, Donoghue, Engel, Herschmann, and
company have apparently concluded they could testify about their dealings with
Trump related to the January 6 committee’s inquiry.
First, the current President has declined to assert executive
privilege (or to support the assertion of executive privilege) over many of the
communications in question. Because any attempted claim of privilege would defy
the position of the sitting President, it would stand highly doubtful footing.
This is confirmed by a series of recent court rulings arising from the January
6 committee’s subpoena for relevant documents from the National Archives, where
Trump’s attempts to halt the production of documents failed at every turn and
were ultimately rejected by the Supreme Court.
Second, whereas the White House Counsel represents the President in
his official capacity, much (or all) of Trump’s conduct relating to the January
6 Committee was undertaken in his personal or campaign capacity. This
conclusion is supported by a decision recently issued by Judge Amit
Mehta (including relying on the Justice Department’s brief in that case); as well as by the
reasoning set forth in a recent Brookings report concerning Trump’s
conduct targeting the election in Georgia. Stated simply, the President has no
legitimate role in the Joint Session of Congress held pursuant to the Twelfth
Amendment.
Trump’s efforts to corrupt and obstruct the
Joint Session—including his incitement of an armed, violent mob to attack the
Capitol—reflected his private pursuit of power, not any presidential function.
Because he was acting only as a person seeking office (a.k.a., a
candidate), he exceeded his official capacity and lost the prerogatives that
come with it. Cipollone’s communications with Trump on this subject thus did
not occur between a government lawyer and his client, and so they are not
privileged.
Third, and relatedly, any claim of privilege would likely fail when
tested against the crime fraud exception. As others have explained—and as one
federal judge has already confirmed—Mr. Trump’s conduct in relation to
January 6 likely constituted a federal crime. Where a lawyer’s client is
engaged in a criminal conspiracy and seeks the lawyer’s involvement in that
undertaking, any claim of privilege fails. Of course, Mr. Trump would retort
that he acted in good faith and genuinely believed the election results were
fraudulent. This claim is virtually impossible to square with the evidence,
including testimony about what Mr. Trump was told by his senior political
advisors. Regardless, even if Mr. Trump truly believed that he had won the
election, that would not immunize him from criminal liability for a host of federal crimes including
conspiring to create false and fraudulent slates of electors, or sending an
armed mob to attack the Capitol in furtherance of an effort to obstruct the
Joint Session of Congress.
Fourth, Trump’s own oft-repeated public statements about the events in
question might well be taken as a waiver of any remaining privilege he might
claim. Legal privileges are not designed to facilitate selective, self-serving
transparency. Because Trump and his agents have weighed in directly on the
subject matter of the questions that the Committee likely would pose to
Cipollone, there is a strong argument that Trump has surrendered any right to
demand Cipollone’s silence.
Finally, Cipollone will most likely receive a grand jury subpoena in
the very near future (if he hasn’t already). Hutchinson’s testimony makes this
almost inevitable, as does the criminal investigation involving Jeffrey Clark
and possibly John Eastman. In the grand jury context, it is only more apparent
that any assertion of privilege would collapse: the relevant legal privileges
belong to the very branch of the federal government that would be conducting
the investigation, and a balancing analysis would overwhelmingly favor DOJ’s
need for testimony over any countervailing consideration. This conclusion is
bolstered by the D.C. Circuit’s ruling in In re Lindsey, which rejected
an assertion of governmental attorney client privilege against a grand jury
subpoena issued by Independent Counsel Ken Starr during the Clinton presidency.
Since Cipollone will soon be required to provide testimony to federal
prosecutors, there is little personal or professional gain to be had in
withholding that very same testimony from the January 6 committee, which has
advanced a powerful claim of legal right to his evidence and which seeks to
protect our democratic system.
For these reasons (and
more besides), Cipollone should not only appear before the January 6 committee,
but he should also offer complete and candid testimony in response to the
committee’s questions. The law affords no legitimate reason for him to conceal
the events in question behind an assertion of privilege.