The news Wednesday that a grand jury investigating the Jan. 6 riot at the Capitol has subpoenaed former Trump White House counsel Pat Cipollone is a game-changer in efforts to prove that former President Donald Trump likely acted criminally in response to the insurrection.
While Cipollone previously asserted attorney-client privilege and executive privilege during testimony to the Jan. 6 House committee, a grand jury is a different matter entirely. In the District of Columbia, the courts have found that both of these privileges must give way to the grand jury’s need to gather evidence in a criminal proceeding.
Cipollone now can be compelled to testify in full before the grand jury, including his crucial conversations with Trump about any of the former president’s efforts to overturn the 2020 election and involvement in inspiring and monitoring the riot itself.
Whatever one thinks of Cipollone’s defense of Trump in his role as White House counsel during the first impeachment, once violence broke out on Jan. 6, his responsibility was not to his boss but the country as a whole.
We believe that Cipollone had a clear duty to report to the attorney general any plans undertaken by Trump to rile up an armed mob to attack the Capitol, under false pretenses of a stolen election, and to interrupt Congress in its official duty to declare a new president. The attorney general and Cipollone should then have reported immediately to Congress.
This obligation became all the more important and serious as Trump sat back on Jan. 6, failing in his constitutional duty to protect the government from the very mob it appears he inspired. But since Cipollone didn’t fulfill that obligation, it’s even more significant that he now will come under the pressure of a grand jury.
It’s clear that Cipollone was a witness to important activity on the part of Trump. Testimony presented by the Jan. 6 committee establishes that in the closing days of the Trump presidency, Cipollone became aware of Trump’s multifarious schemes to overturn the result of the 2020 presidential election.
In particular, Cipollone was one of the participants in the hourslong battle on Dec. 18, 2020, when White House staff were surprised by a visit from outside advisers including Rudy Giuliani, Sidney Powell, Michael Flynn and Patrick Byrne, former Overstock chief executive.
The unscheduled meeting has been referred to as the most “unhinged” during the Trump presidency, and, according to a report from the Jan. 6 committee vice chair Liz Cheney, R-Wyo., involved presenting Trump with the possibility of appointing Powell as special counsel to investigate elections, deploying the military to seize voting machines, and potentially rerun elections.
Cipollone also sat in on the Jan. 3, 2021, Oval Office meeting with top Department of Justice officials when Trump expressed his intention to fire his acting attorney general Jeffrey Rosen and replace him with Jeffrey Clark, an obscure environmental lawyer at the Justice Department who was acting as chief of the civil division.
Clark had circulated a bogus draft letter to officials in Georgia representing that the Justice Department had “identified significant concerns” about irregularities that may have impacted the elections in that state. Cipollone reportedly called the draft letter a “murder-suicide pact.”
But most crucially, Cipollone was in direct contact with Trump on Jan. 6 as Trump sat isolated in the West Wing’s dining room while the Capitol riot raged. Last month, former White House aide Cassidy Hutchinson testified to the Jan. 6 committee that her boss, chief of staff Mark Meadows, told Cipollone that Trump didn’t want to interfere with rioters who were calling for Vice President Mike Pence to be hanged.
“He thinks Mike deserves it,” Hutchinson reported Meadows said of Trump’s reaction. Eventually, Hutchinson said Cipollone warned her that they all could be charged “with every crime imaginable” if they allowed Trump to lead a revolt to the Capitol on Jan. 6.
Despite the importance of what he witnessed, Cipollone has repeatedly claimed privilege in order to avoid discussing his direct conversions with Trump on Jan. 6 with the House committee. But a government lawyer, especially one in such an important position as White House counsel, has duties that differ from a defense attorney when it comes to keeping mum under attorney-client privilege about crimes committed by persons in the organization they represent.
A case from the Whitewater-Monica Lewinsky investigations of the Clinton presidency provides the clearest statement of what White House lawyers should do when they uncover an ongoing crime. President Bill Clinton’s deputy White House counsel Bruce Lindsey was subpoenaed by a grand jury and ultimately compelled to testify in spite of his assertion of the attorney-client privilege.
“With respect to investigations of federal criminal offenses, and especially offenses committed by those in government,” the D.C. Circuit Court of Appeals wrote about Lindsey, “government attorneys stand in a far different position from members of the private bar.” The court explained: “Their duty is not to defend clients against criminal charges, and it is not to protect wrongdoers from public exposure.”
Instead, having sworn an oath to protect the Constitution, a government lawyer has a solemn duty “to uphold the public trust reposed in him or her,” and that obligation “strongly militates against allowing” the attorney the ability “to invoke privilege to prevent the lawyer from providing evidence of the possible commission of criminal offenses within the government.”
In a similar manner, the Supreme Court held in the United States v. Nixon that the president’s generalized assertion of executive privilege had to give way “to the demonstrated, specific need for evidence in a pending criminal trial” and ordered Nixon’s White House tapes to be turned over to the prosecutor investigating him.
Moreover, the recent case between Trump and the Jan. 6 select committee demonstrates that a claim of executive privilege must yield to Congress’s need for critical information, even in a battle involving separation of powers considerations. In Trump v. Thompson, the Supreme Court declined to disturb the D.C. Circuit’s finding that Trump’s executive privilege claim would fail even if he were the incumbent president.
More fundamentally, the Illinois Rules of Professional Conduct, a state where Cipollone is licensed, mandates disclosure “to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.” This mandate was clearly triggered on Jan. 6, as mobs engaged in violence that did result in death and substantial bodily harm.