The
Lawyers Who Enabled Trump’s Assault on Our Republic
August 12, 2022
They forced the nation to live through the catastrophic consequences of their cowardice.
By Steven Harper, J.D.
Adjunct Professor of Law
Northwestern University Law School
Former White House counsel Pat
Cipollone thinks that
Mike Pence should receive the Presidential Medal of Freedom for refusing
Trump’s demand to commit a felony and subvert a presidential election. That’s
how low the bar for heroism among Trump administration alumni has sunk.
Lawyers Who Supported a Lawless
President
When they entered the legal profession, the
attorneys advising Trump swore an oath to uphold the Constitution. Those who
took government jobs in his administration swore it again. But many of them
facilitated Trump’s relentless efforts to undermine the rule of law.
The most notorious members of what former
Attorney General William Barr now calls Trump’s post-election “clown show” may
have been Rudy Giuliani, Sidney Powell, John Eastman, and Jeffrey Clark. But
Barr, Cipollone, and others with law degrees – including Pence – helped to
create the dangerous creature that roamed the White House on January 6, 2021.
Their silence during Trump’s second impeachment and the months that followed
has allowed that creature to continue haunting the country today.
Belatedly, three key Trump advisers with law
degrees have now come forward to reveal the ugly truth about the man they had
enabled for years.
Heroes or hypocrites?
William Barr
Barr, one of Trump’s most outspoken defenders
in his administration, politicized the
Justice Department to serve Trump’s personal agenda. For example:
- He kneecapped special counsel Robert Mueller’s report
by issuing a deceptive and misleading “summary” before it was public. Then
he launched an all-out effort to discredit the entire Trump-Russia
investigation. Finally, he intervened in cases Mueller had brought – and
won – against Trump advisers Roger Stone and Mike Flynn, both of whom
became prominent players in the insurrection.
- For months preceding the
2020 election, Barr sowed doubts about its integrity while
admitting that he had no supporting evidence.
- In the opening sentence of his December 14, 2020
resignation letter – which Trump tweeted immediately
– Barr reassured Trump that “the Department’s review of voter fraud
allegations in the 2020 election… will continue to be pursued.”
Barr now says that before he resigned, he told
Trump repeatedly that the claims and conspiracy theories about widespread
election fraud were “nonsense” and “bullshit.” But prior to the insurrection
and for months thereafter, he did not reveal that to the
public.
Pat Cipollone
Criticizing Trump publicly has been unfamiliar
and uncomfortable territory for Pat Cipollone. American taxpayers had paid him
to represent the office of the president,
not Trump personally. Apparently, he forgot.
- During Trump’s first impeachment trial, Cipollone led the
defense legal team and was among those lawyers who, in the service of
Trump, lied repeatedly to
the Senate and the public.
- On December 18, 2020, he participated in
the “unhinged” Oval Office meeting when Sidney Powell and others urged
Trump to seize voting machines and appoint her special counsel to pursue
non-existent election fraud.
- In the infamous Oval Office session on January 3, 2021,
he told Trump that Jeffrey Clark’s scheme to overturn the election was
a “murder-suicide pact.”
- On January 6, Cipollone urged Trump to stop the attack
on the U.S. Capitol. He warned that Trump would have blood on his hands,
and he was right: Five people died and
more than 140 law enforcement officers were injured.
But it took a public shaming by
Rep. Liz Cheney (R-WY) and the riveting testimony of a young staffer, Cassidy
Hutchinson, to flush Cipollone out and into the witness chair. Finally
– 18 months late – he revealed what he knew about Trump’s traitorous
misconduct.
Steven Engel
Engel was with Trump from the beginning of his
administration. As assistant attorney general in charge of the Justice
Department’s Office of Legal Counsel (OLC), he flew under the public radar, but
his dubious legal opinions provided cover for Trump’s flagrant abuses of power.
- After the House subpoenaed former White House counsel
Don McGahn to pursue Mueller’s evidence that Trump had obstructed justice,
Engel issued an opinion that Congress could not compel
McGahn or other Trump advisers to testify – even to confirm what they had
already told Mueller. More than two years later – after an appellate
court rejected Engel’s
position – McGahn eventually appeared. By then, no one cared.
- The inspector general for the intelligence community
(IGIC) determined that the whistleblower complaint leading to Trump’s
first impeachment presented a “credible” matter of “urgent concern” and
should be provided to Congress immediately. But Engel issued an opinion permitting
Trump to withhold it. His conclusion and underlying legal analysis
generated an unprecedented rebuke from
the entire inspector general community — more than 60 IGs throughout the
federal government: “[W]e agree with the ICIG that the OLC opinion creates
a chilling effect on effective oversight and is wrong as a matter of law
and policy.”
- Days after Trump’s first impeachment trial in
the Senate had begun, Engel issued an opinion defending Trump’s stonewalling of every subpoena
that three House committees had issued to the executive branch during
Congress’s Trump-Ukraine investigation. Constitutional scholar Frank O.
Bowman III observed that
Engel’s position was, “to be plain, ridiculous… absolutely daft…” If
accepted, “The result is not only to neuter the impeachment power, but
more profoundly, to cripple the fundamental check on executive
mismanagement, abuse, corruption, and overreach embodied in their own
power of oversight.”
At the Oval Office meeting on January 3, 2021,
acting Attorney General Jeffrey Rosen and his deputy, Richard Donoghue, told
Trump that if he appointed the manifestly unqualified Clark to replace Rosen,
they would resign. Engel warned Trump that mass Justice Department resignations
– including his own – would follow, and Clark would be “left leading a
graveyard.”
But for more than a year, Engel said nothing
publicly about that meeting.
Blood on Their Hands
While the January 3 Oval Office meeting was
underway, the Washington Post broke the story of
Trump’s tape-recorded call pressuring Georgia election officials the previous
day.
“I just want to find 11,780 votes,” Trump
urged Georgia Secretary of State Brad Raffensperger.
At that point, Cipollone, Engel, Rosen, and
everyone else attending the Sunday night session knew that Trump was proceeding
simultaneously on multiple fronts to overturn the election.
But as January 6 approached, they remained
silent.
As the House impeached Trump for his role in
the insurrection, they remained silent.
As GOP-dominated state legislatures and their
Republican governors relied on Trump’s Big Lie to adopt draconian voter
suppression laws and propose legislation seeking to thwart future popular
presidential vote outcomes, they remained silent.
As Trump and his allies rewrote the story of
the insurrection so that the armed mob became “peaceful protesters” and the
attackers became “tourists,” they remained silent.
And as Republican leaders flip-flopped, they
remained silent.
In the immediate aftermath of the attack, Sen.
Mitch McConnell (R-KY) condemned Trump.
Now he says he’d vote for him again.
Likewise, Rep. Kevin McCarthy (R-CA) said that Trump
bore responsibility for the attack. Now he has returned to his familiar role as
Trump’s lackey.
On January 7, 2021, Sen. Lindsey Graham
(R-SC) said, “Count me
out… The president needs to understand that his actions were the problem,
not the solution. … It breaks my heart that my friend, a president of
consequence, would allow [Jan. 6] to happen, and it will be a major part of his
presidency. It was a self-inflicted wound.” In September 2021, Graham said that he
hoped Trump runs again in 2024.
What If?
If Barr had broken his silence before January
6, would the violent attack on the Capitol even have occurred?
In the immediate aftermath of the attack, if
Cipollone, Engel, Rosen, and others had revealed what they knew, would Trump
have remained the face of the GOP?
If collective fear hadn’t kept all of them
quiet for so long, would Trump today be the “clear and present danger to
democracy” that former Judge J. Michael Luttig warned?
Late is better than never for Republicans who
resisted Trump’s attempted coup and have now come forward. But they are not
profiles in courage. Their prolonged silence forced the nation to live through
the catastrophic consequences of their earlier cowardice.
And those consequences endure.
