I first met Pat Cipollone in 2004. We served as opposing counsel in a very large commercial arbitration that required us to live and work in a hotel in Cincinnati for a month. Seven years later, I started a continuing legal education program with President Richard Nixon’s White House counsel John W. Dean, which we called the Watergate CLE. I invited Pat to attend our program at the George Washington University School of Law, thinking he might find intriguing the lessons that Watergate might hold for lawyers, as seen from the vantage point of White House counsel themselves.
Little did I guess that Pat would, a few years later, become President Donald Trump’s White House counsel. And now the Jan. 6 committee appears to have worked out a deal for Cipollone to testify in person.
It has been suggested by witness Cassidy Hutchinson and others that Cipollone played a key role in attempting to control, if not stop, Trump.
I highly encourage him to testify fully. As White House counsel, it has been suggested by witness Cassidy Hutchinson and others, Cipollone played a key role in attempting to control, if not stop, Trump in his allegedly illegal campaign to overturn the 2020 election. If that is so — and I hope it is — then it is Cipollone’s duty as a lawyer to testify about his former boss.
Like all lawyers in this country, Cipollone took a solemn oath when was admitted to practice law in the District of Columbia and the state of Illinois. He pledged to “protect the Constitution of the United States.” Because the protection of our democratic form of government is one of the central obligations of all lawyers.
But it is not our only obligation. One of the core principles that emerged from Watergate was that lawyers cannot assist clients in ongoing crime or fraud. And they are allowed to testify despite the duty of confidentiality as to client crime or fraud. Stated succinctly, there is no attorney-client privilege when it comes to a client’s ongoing scheme to defraud someone or to commit a crime.
Further, a government lawyer has a very circumscribed attorney-client privilege — even where one does exist. During the Bill Clinton years, it was established in a case involving deputy White House counsel Bruce Lindsey that “White House lawyers cannot keep evidence of crimes committed by government officials to themselves.” The U.S. Circuit Court of Appeals for the District of Columbia noted “openness in government has always been thought crucial to ensuring that the people remain in control of their government.”
Today, Trump’s course of conduct is continuing — he continues to falsely assert that the 2020 election was stolen, and he refuses to concede the election. Nor has he fully condemned the Jan. 6 attacks on the Capitol.
When John Dean testified in June 1973 before a Senate select committee, he produced a document that showed how many lawyers had crossed the line into criminal behavior, himself included. This revelation struck a nerve. The American Bar Association commissioned Robert Kutak and others to revise the ethical rules for lawyers, which resulted in what is known as the Model Rules of Professional Conduct.
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Deeply embedded in these post-Watergate ethics rules is the proposition that attorneys representing organizations whose leaders are engaged in ongoing crime or fraud need not sit in a silence box. They can and should report the behavior if they cannot stop it internally.
Based on what we have now already heard from Jan. 6 hearing witnesses like Cassidy Hutchinson, it is apparent that there likely was ongoing crime and fraud being orchestrated by Trump and that Cipollone was a firsthand, percipient witness to those events.
Today, Pat Cipollone is a key witness to history. Our democratic form of government is still under attack, and it continues to be his highest duty as a lawyer to protect the Constitution of the United States. There are surely personal consequences he may suffer for testifying to the truth, as John Dean did in 1973, but our country and our now precarious democracy are worth the price.
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