Pat Cipollone can aid or impede Jan. 6 Committee’s search for truth
On June 29, the Jan. 6 committee subpoenaed former Trump White House Counsel Pat Cipollone to testify. Cipollone faces what should be an easy choice: He can honor the oath that he took as a lawyer and public servant and share what he saw, said and heard during the events surrounding the criminal assault on the Capitol. Or he can serve as “Tom Hagen” to Donald Trump’s “Don Corleone,” acting as a consiglieri shielding “the boss” at all costs.
Cipollone would be on shaky legal grounds should he refuse to comply with the subpoena.
As White House Counsel, his role was as attorney for the office of the presidency, not for Donald Trump personally. Trump, in planning for the infamous rally on the Mall, the march to the Capitol and all of the other sordid activities that the Jan. 6 committee has illuminated, Trump was acting as a candidate — a disappointed but repudiated candidate — for reelection, not in his capacity as president.
President Ronald Reagan’s White House Counsel emphasized the importance of recognizing “the difference between the role of a lawyer for a private individual, as opposed to the lawyer for the institution of the presidency … Perhaps, one way to think about this is that the president is a person who is the temporary occupant of a governmental office.”
Indeed, Trump was relying on his own separate, personal counsel to orchestrate his illicit quest to cling to power, the discredited lawyers Rudy Giuliani and John Eastman.
Because Cipollone’s role was not to represent Trump, no attorney-client privilege attaches to any of the communications between Cipollone and Trump in which the committee is interested. Fortunately for Cipollone and for the country, Trump cannot treat Cipollone as his lawyer for any of the events being investigated.
The District of Columbia’s rules of professional ethics expressly release a lawyer from any obligation of confidentiality when a client “has used . . . a lawyer’s services to further a crime or fraud.” A federal district court stated in March that it is more likely than not that Trump was engaged in both.
That statement came in the context of a federal court ruling that the “crime-fraud” exception applied to the dealings between Trump and Eastman — rejecting Eastman’s attempt to block the Jan. 6 Committee from getting access to materials that otherwise would have been privileged. It would be foolish for Cipollone to step anywhere close to inviting a similar adjudication of his own complicity, if any.
He would be well-advised, personally and professionally, to acknowledge that he had — and has — no obligation to shield Trump in this matter. Instead, he should honor the oath he took as White House Counsel to support and defend the United States “against all enemies, foreign and domestic.” Only full, truthful testimony will allow the country to know whether Donald Trump falls in that latter category.
Any concerns about “executive privilege” are equally weak as an excuse for refusing to tell the truth. As the Supreme Court made clear in the Nixon Tapes case, which one of us (Lacovara) successfully argued, the privilege is a limited one that applies only to official communications relating to performance of the president’s official, constitutional functions. It has no bearing at all on the activities of a political candidate challenging the results of an election, even if he happens to be president at the moment.
Moreover, as with the crime-fraud exception to the attorney-client privilege, the Supreme Court also made clear that executive privilege does not shield complicity in any criminal activity.
Further, in Trump v. Thompson, the federal court of appeals in Washington ruled recently that the Jan. 6 committee’s need for access to information relating to Trump’s role in the attack on the Capitol outweighed any executive privilege that Trump, as a former president, otherwise might have had standing to assert. The Supreme Court — with a dissent from only Justice Clarence Thomas, whose wife was reportedly an active participant in Trump’s schemes — upheld the decision to disallow Trump’s claim of executive privilege.
In the face of these well-established principles, it would be difficult to imagine any reason why an honorable lawyer and public servant, as Cipollone is said to be, would defy a subpoena to come forward and tell the truth.
His testimony matters, because no one, including Cassidy Hutchinson, has testified to any statement about what Cipollone told Trump about the potential criminality in Trump’s plans. Testimony establishing his disregard for Cipollone’s warnings would close a key loop on Trump’s corrupt action and intent.
One may infer that Cipollone told Trump, as he allegedly told Ms. Hutchinson, that “going to the Capitol … would be legally, a terrible idea,” and would open him to charges of “every crime imaginable.” The committee wants not mere inference, however, but rather proof — Cipollone’s testimony — of any warnings Trump received before allegedly attempting to go to the Capitol over the Secret Service’s unwillingness to take him there.
If Cipollone, in an excess of caution, required any assurance that he is entitled to heed the subpoena and testify, he could arrange with the committee to obtain a prompt declaration from the federal court confirming the points that we are making.
But the one course that is not legitimately open to him is to remain defiant.
Stalling would reasonably be perceived as an attempt to run out the clock in order to promote Trump’s personal interests at the expense of the public’s. As an earnest conservative, Cipollone should heed the cautionary appeal of the political philosopher John Stuart Mill on whose work the founders heavily relied: “Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”
Phillip Allen Lacovara was deputy solicitor general of the United States, counsel to the Watergate special prosecutor, and the winning advocate in United States v. Nixon. He also served as president of the District of Columbia Bar.
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.