DOJ Asks D.C. Circuit Chief Judge To Compel Testimony From Former White House Counsels

The Department of Justice wants to pierce former White House Counsel Pat Cipollone and deputy White House Counsel Patrick Philbin’s claims to attorney-client privilege (and-or executive privilege) regarding their discussions with Trump for which they “had no valid claims of privilege that would permit [them] to refuse to answer questions relating to matters the committee is investigating.” See, The Law Requires Pat Cipollone to Answer the Jan. 6 Committee’s Questions.

CNN reports, DOJ asks judge to force Trump White House lawyers to testify in Jan. 6 probe:

The Justice Department is asking a federal judge to force the top two lawyers from Donald Trump’s White House counsel’s office to testify about their conversations with the former President, as it tries to break through the privilege firewall Trump has used to avoid scrutiny of his actions on January 6, 2021, according to three people familiar with the investigation.

The move to compel additional testimony from former White House counsel Pat Cipollone and deputy White House counsel Patrick Philbin just last week is part of a set of secret court proceedings. Trump has been fighting to keep former advisers from testifying before a criminal grand jury about certain conversations, citing executive and attorney-client privileges to keep information confidential or slow down criminal investigators.

But the Justice Department successfully secured answers from top vice presidential advisers Greg Jacob and Marc Short over the past three weeks in significant court victories that could make it more likely the criminal investigation reaches further into Trump’s inner circle.

Jacob’s testimony on October 6, which has not been previously reported, is the first identifiable time when the confidentiality Trump had tried to maintain around the West Wing after the 2020 election has been pierced in the criminal probe following a court battle. A week after Jacob spoke to the grand jury again, Short had his own grand jury appearance date, CNN reported.

All four men previously declined to answer some questions about advice and interactions with Trump when they testified in recent months in the secret criminal probe. Trump lost the court battles related to Jacob and Short before the chief judge of the trial-level US District Court in Washington, DC, last month.

Attorneys for the men whom the DOJ is seeking to compel have declined to comment for this story or haven’t responded to requests. Cipollone and Philbin didn’t respond to requests for comment. A spokesman for the Justice Department also declined to comment.

All four men have been willing to be as cooperative as the law demands, leaving Trump’s team to handle the fight over certain details in the investigation, the sources say.

The litigation around Cipollone and Philbin’s testimony may be important for investigators in the long run, given how close the pair was to the Trump leading up to and during the Capitol riot. Prosecutors are likely to aim for the grand jury to hear about their direct conversations with the then-President.

The disputes – conducted under seal in court because they involve grand jury activity – may also spawn several more court fights that will be crucial for prosecutors as they work to bring criminal charges related to Trump’s post-election efforts.

Witnesses the federal grand jury has subpoenaed, such as former White House officials Mark Meadows, Eric Herschmann, Dan Scavino, Stephen Miller and campaign adviser Boris Epshteyn, also could decline to describe their conversations with Trump or advice being given to him after the election, several sources familiar with the investigation say.

* * *

Court fight so far

According to the sources, the Justice Department won a trial-level judge’s order at the end of September that said Jacob and Short must testify in response to certain questions over which Trump’s team had tried to claim presidential and attorney-client confidentiality.

The sealed court case, stemming from the grand jury’s work, had been before the chief judge of the DC District Court, Beryl Howell. Howell refused to put on hold Jacob and Short’s testimony while Trump’s team appealed, a source said.

The Trump team, meanwhile, took several days to respond to their loss before Howell in court. The Justice Department set a quick-turnaround subpoena date for Jacob, leaving him to head into the grand jury under subpoena on October 6, according to several sources.

The DC Circuit Court of Appeals is still considering legal arguments from Trump’s defense lawyers and the Justice Department over his ability to make executive and attorney-client privilege claims.

How that is resolved – either by the appeals court or even the Supreme Court, if Trump pursues it that far – could have significant consequences for the January 6 criminal investigation, and for multiple witnesses who may be refusing to share some of what they know because of Trump’s [bogus] privilege claims.

Among a large group of former top Trump officials, Jacob has been one of the most searing voices condemning the then-President’s actions after the election, especially regarding the pressure he and his election attorney, John Eastman, tried to place on then-Vice President Mike Pence to block the congressional certification of the presidential vote.

Jacob has been a harsh critic of Eastman, who is also of interest to prosecutors, dating back to when Eastman tried to convince Pence’s office the vice president alone could override the vote. He told Eastman at the time the right-wing attorney was a “serpent in the ear” of the President, and wrote while Trump supporters stormed the Capitol on January 6, 2021, “thanks to your bulls**t, we are now under siege.”

Jacob added to a parade of star witnesses at public House select committee hearings this summer, speaking candidly about his disgust with what he witnessed inside the White House complex from his high-ranking position administration.

“There is almost no idea more un-American than the notion that any one person would choose the American President, and then unbroken historical practice for 230 years, that the vice president did not have such an authority,” Jacob testified in July.

But what Jacob and Short knew of Trump’s conversations, they wouldn’t disclose to the House nor to the grand jury until this month.

In a taped House select committee deposition, Cipollone answered many questions about what happened inside the West Wing on January 6 but declined to describe communications between him and Trump.

Cipollone’s and Philbin’s roles as White House lawyers raise complicated legal questions about whether Trump can claim confidentiality over the legal advice they gave him, as well as whether a former president can assert executive privilege to hold off criminal investigators.

President Joe Biden has repeatedly declined to assert executive privilege around January 6 information, essentially leaving the fight for Trump to wage opposite the Justice Department.

While the courts will look at each situation individually, history isn’t on Trump’s side. Federal prosecutors investigating former Presidents Bill Clinton and Richard Nixon were able to overcome attorney-client privilege assertions for White House counsel as well as executive privilege assertions so the grand jury could hear closely guarded information.

There is not a special rule for Donald Trump, which is what he and his unethical lawyers are arguing.

UPDATE: Politico reports, Judge to consider unsealing Trump grand jury filings (excerpt):

A federal judge is considering whether to unseal secret court documents detailing former President Donald Trump’s effort to prevent former aides from providing testimony to a grand jury investigating efforts to subvert the 2020 election.

Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia on Wednesday asked the Justice Department to weigh in on unsealing requests made by two media organizations: POLITICO on Oct. 18 and the New York Times on Oct. 21.

Howell’s request comes as Trump has been quietly waging — and losing — a court battle in recent weeks to prevent former aides from testifying to the grand jury.

Marc Short, former chief of staff to Vice President Mike Pence, testified before a grand jury last Thursday just hours after a federal appeals court panel rejected a last-ditch appeal by Trump lawyers seeking to raise executive privilege concerns about the appearance.

After a rushed series of filings, three D.C. Circuit Court of Appeals judges — Karen Henderson, Robert Wilkins and Florence Pan — turned down the emergency stay request at about 7 p.m. on the evening before Short testified, according to a court docket POLITICO reviewed that reflects the closed-door legal battle.

[T]he appeals court panel’s ruling was the result of a four-month fight that was initiated on June 10 over testimony related to grand jury subpoenas pertaining to the investigation into the Jan. 6, 2021, attack on the Capitol. That fight began around the same time Short first appeared before federal investigators. But it accelerated rapidly on Sept. 28, when Howell ruled against Trump. The nature of the ruling remains sealed but it pertained to two grand jury subpoenas that Trump had challenged.

The identity of the recipients of those subpoenas is not clear, though the timing suggests they were connected to testimony from Short and Greg Jacob, Pence’s chief counsel.

POLITICO moved to unseal Howell’s Sept. 28 ruling and related filings last week. On Wednesday, Howell ordered the Justice Department and Trump attorneys to respond to that motion by Nov. 15. The New York Times filed a similar unsealing motion on Friday.

The Washington Post first reported on the appeals court ruling, but the identity of the judges who decided the matter and the precise timeline of Trump’s secret battle has not previously been reported. CNN first reportedthat Jacob, too, was the subject of Howell’s September ruling and Trump is mounting a separate challenge to potential testimony by former White House Counsel Pat Cipollone and his then-deputy, Pat Philbin.

Short was at the courthouse for more than three hours on Oct. 13, but had little to say to reporters as he left. “I got nothing to offer you,” he said. He did not respond to subsequent requests for comment.

The rejection of Trump’s attempts to block testimony from his former White House aides was just the latest snub handed to him by the federal courts.

[T]he legal clash around Short’s testimony intensified after Howell issued a sealed ruling against Trump on Sept. 28, court records show.

Howell’s ruling dismissed attempts by the former president to postpone the hearings while claims of executive privilege were litigated. It came just six days after three of Trump’s attorneys visited the federal courthouse to plead their case. Their exit from the building following their Sept. 22 appearance was captured by photographers camped out outside.

Howell’s ruling effectively compelled Short to testify. Short had previously appeared for questioning by federal prosecutors in June pursuant to a grand jury subpoena, but he limited his testimony to avoid immediate questions about Trump’s claims of privilege.

On Oct. 11, two weeks after Howell’s order, Trump sought an emergency stay of her decision from the D.C. Circuit Court of Appeals. Henderson, Wilkins and Pan demanded a response of up to 5,200 words to that motion from the Justice Department by 4 p.m. on Oct. 12, an unusually rapid timetable even for emergency motions.

The appeals court’s docket gives no indication that any judge dissented from the ruling last week. Asked about the matter the following day, a court clerk said the panel’s order on the emergency stay remained under seal.

All of the parties’ filings before the appeals court panel also remain under seal. Trump’s appeal remains pending, so he could still ask the D.C. Circuit to dive into the legal issues and produce a formal ruling on whether he has a right to block testimony from other White House aides or advisers. He may still take the emergency matter to the Supreme Court to prevent additional witnesses from testifying.