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.
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.
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 Jan. 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.
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