Former White House Counsels Pat Cipollone And Patrick Philbin Will Have To Testify Fully To A Criminal Grand Jury

A federal grand jury investigating efforts to undo the results of the 2020 presidential election has subpoenaed the White House counsel under then-President Donald Trump and his top deputy, according to a person familiar with the matter. Grand jury subpoenas Trump White House lawyers for Jan. 6 probe:

The subpoenas to Pat Cipollone and Patrick Philbin suggest an intensifying Justice Department investigation into the events surrounding the deadly Jan. 6 insurrection at the U.S. Capitol, when Trump loyalists stormed the building in hopes of halting the certification of election results. They also suggest that prosecutors regard close advisers to Trump as potentially vital witnesses.

Cipollone was the top White House lawyer in the final days of the Trump administration and was part of the legal team that defended the Republican president in his first House impeachment trial in 2020. But Cipollone vigorously resisted attempts by Trump and his allies to undo the results of the presidential election Trump lost to Democrat Joe Biden, saying he did not agree that there was sufficient fraud to have affected the outcome of the race.

The grand jury subpoenas were confirmed to The Associated Press by a person familiar with the matter who insisted on anonymity to discuss an ongoing investigation. CNN also reported Philbin’s subpoena Wednesday. Cipollone, Philbin and a lawyer who has been representing them did not return messages seeking comment Thursday.

What happens next is unclear, though there may be negotiations over the scope of the grand jury testimony given that Cipollone and Philbin were lawyers inside the White House and were privy to numerous private conversations with the president. Executive privilege generally protects a president’s ability to obtain candid counsel from advisers without fear of immediate public disclosure, though there are limits.

Federal prosecutors have been especially focused on a scheme by Trump allies to elevate fake electors in key battleground states won by Biden as a way to subvert the vote, issuing subpoenas in recent weeks to multiple state Republican party chairmen.

The Justice Department investigation into the Jan. 6, 2021, insurrection and into the efforts to overturn the election has been proceeding alongside a separate probe by a House committee, which has held several public hearings, including in prime time.

Cipollone was interviewed privately by that panel last month and refused to discuss his conversations with Trump, citing executive privilege.

Politico adds, Trump faces uphill fight on executive privilege in DOJ probe:

Donald Trump’s camp has yet to say whether he’ll try to use executive privilege to disrupt the Justice Department’s grand jury investigation into attempts to overturn the 2020 election. But if he does, it could be a very short fight.

A series of court rulings prompted by Trump’s effort to stymie the House Jan. 6 select committee investigating the Jan. 6, 2021, attack on the Capitol sharply rejected Trump’s bid to wield the power as a former president. In fact, the Supreme Court agreed that Trump’s effort to assert privilege would have failed even if he were the sitting president, effectively granting the committee access to Trump’s White House papers.

Those rulings could carry significant ramifications as Trump confronts a growing grand jury investigation into his efforts to seize a second term he didn’t win, including testimony last month by former Vice President Mike Pence’s chief of staff, Marc Short, and Pence’s counsel, Greg Jacob. On Tuesday, ABC reported that Trump’s former White House counsel, Pat Cipollone, had received a grand jury subpoena. Cipollone’s deputy, Patrick Philbin, was also summoned to the grand jury, a development first reported Wednesday by CNN and confirmed to POLITICO by a person familiar with the situation.

Short, Jacob and Cipollone testified to the Jan. 6 select committee but negotiated strict terms to avoid discussing their direct interactions with Trump — a nod to the disputed possibility that such communications could be protected by executive privilege. But it’s unlikely that such claims would pass muster in a criminal probe.

“There is no way that any court would say they didn’t have to testify to conversations with President Trump in a grand jury investigation — a criminal investigation arising out of that conduct,” said Neil Eggleston, who served as White House counsel to President Barack Obama and represented President Bill Clinton in several executive privilege fights. “There’s no doubt if this got to a court, it would hold that the department is entitled to the information. … I think it’s a no-brainer.”

CNN reported last week that Short and Jacob declined to answer some questions before the grand jury on executive privilege grounds, as they had done during depositions conducted by the House Jan. 6 Select Committee. The panel has argued that executive privilege does not apply to nearly any conversation Trump had related to efforts to overturn the election, but the committee has opted against litigating those thorny and time-consuming issues, instead permitting cooperating witnesses — including Short, Jacob, Cipollone and others — to answer questions without revealing specific details of conversations with Trump that could even arguably be privileged. But Trump’s suit against the panel and the National Archives was an exception to the panel’s general approach of seeking to avoid or delay litigation on such issues.

It remains unclear whether Trump intends to formally assert executive privilege in a bid to block any testimony to the grand jury. A Trump spokesperson did not respond to requests for comments on the former president’s plans.

However, Trump is likely to be at a disadvantage in such a legal battle because of the defeats he already suffered as he tried to block the National Archives from disclosing thousands of pages of his White House records to the Jan. 6 select committee.

[In] short, the Justice Department’s grand jury investigation might benefit from Trump’s repeated efforts to block investigators in the past. Even before those court rulings, the department typically had the upper hand in battles over privilege. Grand jury subpoenas are more legally potent than the congressional variety, and the Justice Department will enter any fight with Trump armed with a court-approved strategy to defeat Trump’s executive privilege claims.

Judges at every level determined or acquiesced in rulings that the urgency of Congress’ need to investigate the Jan. 6 insurrection easily outweighed Trump’s desire to maintain the secrecy of potentially privileged records.

“Presidents are not kings, and Plaintiff is not President,” U.S. District Court Judge Tanya Chutkan wrote in the first ruling against Trump last November. The D.C. Circuit Court of Appeals followed suit, with a 68-page opinion rejecting Trump’s effort to assert privilege on multiple bases.

“The January 6th Committee has … demonstrated a sound factual predicate for requesting these presidential documents specifically,” Judge Patricia Millett wrote for the three-member panel. “There is a direct linkage between the former President and the events of the day.”

The panel’s victory against Trump unlocked some of its most crucial evidence against the former president, including handwritten notes, call and visitor logs and speech drafts that showed the West Wing struggling to get Trump to condemn violent supporters on Jan. 6 and continue his efforts to overturn the election during and after the riot.

A separate legal fight —between Trump’s last chief of staff, Mark Meadows, and the Jan. 6 select committee — may also bear on Trump’s ability to insert executive privilege issues into the grand jury investigation. In that civil case, Meadows asserted immunity from congressional subpoenas, a power that the Justice Department has long supported for sitting presidents and their immediate advisers.

[In] a 17-page brief filed in Meadows’ case just over two weeks ago, the Justice Department for the first time said that a former aide to a former president did not have “absolute” immunity from compelled testimony, and that Biden’s decision to waive privilege should take precedence over any attempt by a former president to assert it.

“Allowing a former President to override the decisions of the incumbent would be an extraordinary intrusion into the latter’s ability to discharge his constitutional responsibilities,” the department argued.

Meadows’ lawyer George Terwilliger sharply criticized the Justice Department’s move, saying it “elected to become an advocate for the committee and urged the court to go into untested legal waters.”

[T]he courts tend to fast-track grand jury subpoena battles because of the priority given to criminal investigations.

“The Department of Justice can get in front of a court really fast, unlike Congress,” said Eggleston, the former Obama White House counsel. “They can do that in a matter of days. They can work so much faster and they don’t really have to negotiate.”

Legal experts say the reported grand jury subpoenas to Cipollone and Philbin raise issues beyond the traditional executive privilege ones because they were, at times, giving Trump legal advice that would normally be protected by attorney-client privilege. However, in a 1998 dispute stemming from Independent Counsel Ken Starr’s probe of President Bill Clinton’s White House, the D.C. Circuit ruled that governmental attorney-client privilege had to yield to a grand jury subpoena in the context of a criminal investigation.

“The D.C. Circuit is very explicit that government attorneys do not have any greater privilege than other advisers when it comes to information they have that is relevant to a grand jury,” said Ryan Goodman, a New York University law professor and co-founder of the Just Security blog. “I think it’s highly likely that Trump will lose very quickly because … there’s case law in the D.C. Circuit contradicting any such claims.”

One former White House lawyer for Trump, Ty Cobb … acknowledged that either way, current law says criminal investigators can get even information protected by that privilege if they show “an urgent need” and “no other place to go” for it.

“If you tick those boxes, you can be questioned,” he said. The attorney noted, though, that some witnesses might choose to invoke their Fifth Amendment rights regardless of, or in addition to, any privilege Trump might assert, and the right against self-incrimination is largely treated as sacrosanct.

The initial stages of any executive privilege fight over grand jury testimony about Trump would go to Chief Judge Beryl Howell, an Obama appointee and former Senate Judiciary Committee counsel who has repeatedly voiced outrage about the Jan. 6 attack.

Beyond that, Trump’s lawyers can take the issue to the D.C. Circuit, which already snubbed him in the White House records fight, and on to the Supreme Court, which did the same.

The only outward sign of hesitation from the Justice Department on executive privilege issues is its decision last year not to bring criminal charges against Meadows and Trump’s social media guru, Dan Scavino, for defying House subpoenas based on what they said were instructions from Trump.

But the department’s recent backing for the House in Meadows’ civil suit seems to indicate that Justice Department officials are committed to their view that the stronger legal argument here is that, as a former president and because of the gravity of the Jan. 6 events, Trump cannot successfully assert the privilege to block testimony.

Indeed, some legal observers say Trump’s chances of succeeding in this sort of court battle are so remote that he might not even choose to fight it out. A privilege battle that attorney John Eastman pursued in court against a House subpoena led to a judge ruling in March that Trump likely committed a crime — obstruction of justice — by trying to interfere with the certification of electoral votes by Congress on Jan. 6, 2021.

One potential downside for Trump if he does put up a privilege fight over the grand jury demands is a repeat of what happened in the Eastman case, with a judge or multiple judges publicly declaring that he probably broke criminal law. It wouldn’t amount to a criminal charge, but would fuel public perceptions that Trump crossed the legal line in his activities trying to overturn President Joe Biden’s win at the ballot box.

“There’s a potential risk for Trump that a judge holds there’s sufficient evidence of his engaging in criminal conduct,” said Goodman, the New York University law professor, a possibility that might dissuade Trump from embarking on a quixotic legal battle to shield his advisers from testifying about their conversations with him.

Pat Cipollone and Patrick Philbin, as White House Counsels, were present for almost every key meeting between Donald Trump and his Coup Plotter co-conspirators, and his meetings with Vice President Mike Pence. If they testify fully and truthfully, they would be the equivalent of the Nixon tapes in Watergate.