It’s Time For Pat Cipollone To Have His John Dean Moment With History

The House select committee investigating the January 6, 2021, US Capitol attack has issued a subpoena to compel testimony from Pat Cipollone, former President Donald Trump’s White House counsel. January 6 committee subpoenas Trump White House counsel Pat Cipollone for testimony:

Cipollone, who many former administration officials credit with helping to prevent Trump from taking legally questionable actions in the months around the 2020 presidential election [until he failed miserably with events surrounding January 6], has long been considered a key witness by the committee. He has resisted talking further with the committee after previously sitting for a closed-door interview on April 13.

The committee said in its subpoena letter that it has obtained evidence that Cipollone is “uniquely positioned to testify” but he has “declined to cooperate” past that interview, leaving the panel with “no choice” but to issue the subpoena. During recent public hearings, members of the panel have publicly pressured Cipollone to testify. The committee is now taking the step to issue a subpoena in an effort to force his formal cooperation.

Mississippi Democratic Rep. Bennie Thompson, the panel’s chairman, and Wyoming Republican Rep. Liz Cheney, the panel’s vice chair, said that “the Select Committee’s investigation has revealed evidence that Mr. Cipollone repeatedly raised legal and other concerns about President Trump’s activities on January 6th and in the days that preceded.”

“While the Select Committee appreciates Mr. Cipollone’s earlier informal engagement with our investigation, the committee needs to hear from him on the record, as other former White House counsels have done in other congressional investigations,” the pair continued.

Most notably White House Counsel John Dean who testified before the Watergate Committee at length and in great detail.

“Any concerns Mr. Cipollone has about the institutional prerogatives of the office he previously held are clearly outweighed by the need for his testimony.”

On this point, Pat Cippolone has no basis to object to testifying before the January 6 Committee, other than to assert his Fifth Amendment privilege for his own complicit criminality, if any. That assertion of privilege must come under oath in response to specific questions.

White House Counsel is a unique position. As Bob Bauser explains, Thoughts on the Proper Role of the White House Counsel (excerpt):

The lawyer serving as White House Counsel is not, of course, a president’s personal counsel but is charged with providing legal support to the Office of the Presidency. The President is the “client,” but so are the individual members of the White House staff, and the obligation extends to the public. It is naturally hard, and some imagine it to be impossible, for the Counsel to the President to separate obligations to the institution from the demands of loyal service to the flesh-and-blood individual holding the office.

[B]ut there are a few guidelines, working principles, which have emerged from this tumultuous experience and help clarify the proper role of the White House Counsel.

First is the one already noted: the counsel in any situation must be clear about the “client” interest she is serving when giving advice. It may often be that good advice serves all the relevant interests—the particular president’s, the Office’s, and the public’s. But this can be a more complex and demanding judgment than it seems.

Second, the White House Counsel is the lawyer and not the client, an agent and not a principal. It is one of the reasons that White House Counsels do well, as a general matter, to refrain from weighing in on the substance of policy questions. It is usually a mistake for the Counsel to attempt to be both lawyer and a constituent member of the “client,” because if engaged in policy, the lawyer may be inclined toward a legal position helpful to her policy preference, and others in the policy debate may suspect bias (even if there is none) and lose confidence in the Counsel’s professional objectivity.

Third, the lawyer has special responsibility for legal and ethics compliance within the West Wing. She may have to advise on a wide range of areas, increasingly including national security, but a bedrock responsibility is ensuring the adherence to law and ethics standards by the President and the staff.

Fourth, the White House Counsel has to be an honest broker in matters of process in which she is involved. The resolution of legal issues that concern the president may be the primary responsibility, or require the participation, of the legal staffs of other Departments or agencies. The Counsel has a role in assuring that whenever she will be the one fashioning and delivering the advice, all informed views of affected agencies considered. There are other instances in which she is not the appropriate legal decision-maker or adviser, but coordinates the development and delivery of the advice.

Finally, the Counsel must determine how all of these responsibilities are most effectively performed in the particular presidency, taking into consideration the specific tone set, the policies emphasized, and the political challenges faced by the occupant of the office. This is not to suggest that the White House Counsel is just the president’s lawyer and must keep closely attuned to what that president wants. It means that the lawyer cannot represent all the relevant interests without a thoroughgoing appreciation of the political and policy environment within which she is working.

Because the White House Counsel is not the president’s personal lawyer, Cippolone does not have a lawyer-client relationship with the president which binds him to client confidentiality. In fact, under ABA Model Rule 1.6, Confidentiality of Information, section (b), Cippolone could have gone to law enforcement to stop the planned armed violent insurrection on January 6 if he was as concermed about it as Cassidy Hutchinson seemed to indicate in her testimony.

(Excerpt)

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

Comment 6 to Model Rule 1.6 (b) states, in part, “Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.

Comment 7 to Model Rule 1.6 (b) states, in part, “Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances.

The ethics rule is permissive. Cippolone did not have an ethical duty to report the Coup Plot to law enforcement, but he certainly had a moral duty to do so to fulfill his oath of office to defend the Constitution. He did have a duty to withdraw as White House Counsel if he believed that the Coup Plot was criminal, and according to the testimony of Cassidy Hutchinson, he most certainly did:

CASSIDY HUTCHINSON: On January 3rd, Mr. Cipollone had approached me knowing that Mark had raised the prospect of going up to the Capitol on January 6th. Mr. Cipollone and I had a brief private conversation where he said to me we need to make sure that this doesn’t happen. This would be a legally a terrible idea for us. We’re — we have serious legal concerns if we go up to the Capitol that day.

And he then urged me to continue relaying that to Mr. Meadows, because it’s my understanding that Mr. Cipollone thought that Mr. Meadows was indeed pushing this, along with the president.

CASSIDY HUTCHINSON: That’s correct. I saw Mr. Cipollone right before I walked out onto West Exec that morning, and Mr. Cipollone said something to the effect of please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.

LIZ CHENEY: And do you remember which crimes Mr. Cipollone was concerned with?

CASSIDY HUTCHINSON: In the days leading up to the 6th, we had conversations about potentially obstructing justice or defrauding the electoral count.

Pat Cipollone never reported the Coup Plot to law enforcement, he never offered his resignation despite reportedly threatening to do so (which Jared Kushner dismissed as “whining”), and if he was a participant in the Coup Plot conspiracy, he never withdrew from the conspiracy before the crime was attempted. Other than merely advising “don’t do this” he did not do any of the things a lawyer typically is supposed to do.

Pat Cipollone also cannot assert executive privlege. That privilege belongs to the current occupant of the White House, Joe Biden, and he is unlikely to grant Pat Cipollone any executive privlege. Biden has waived executive privilege for virtually all of the January 6 Committee’s requests for presidential records and for witnesses. An ex-president does not have any executive privilege to assert.

There is also the crime-fraud exception to privilege which destroys any privilege Cipollone could assert, other than his Fifth Amendment privilege.

Do not go the same route traveled with other Trump officials. The House must change its rules to invoke INHERENT CONTEMPT. End the nonsense of subpoena noncompliance by relying on DOJ or courts when Congress has the power to compel. Force Cipollone’s hand! https://t.co/nePMF9kZx6

— John W. Dean (@JohnWDean) June 29, 2022

MSNBC’s Lawrence O’Donnell gives a very good explanation of Pat Cipollone’s predicament as White House Counsel. If he wants to remembered by history as a patriot who stood up and did his duty to defend the Constitution, he will testify under oath to the January 6 Committee, and he should do so publicly as John Dean did.

CNN continues:

Cipollone will probably agree to a transcribed interview with the January 6 committee — limited to specific topics to avoid the privilege issues, a lawyer familiar with his thinking told CNN. Whether any testimony would be taped or live would also need to be worked out.

Rep. Zoe Lofgren, a California Democrat who’s also a member of the committee, told CNN’s Anderson Cooper on “AC360” on Wednesday that the panel is willing to work through privilege issues with Cipollone to facilitate his testimony.

“I hope that he does comply,” she said. “We recognize that there could be some communication between him and the president that is legitimately privileged, and we’re willing to work through those.”
Lofgren said there are “quite a few things that he could tell the committee that would not be subject to privilege.”

Witnesses who have testified before the panel have repeatedly mentioned Cipollone as someone who can shed light on key events inside the Trump White House leading up to, on and after January 6, 2021.

Not long after the rioters broke into the US Capitol, Cipollone rushed into then-White House chief of staff Mark Meadows’ office demanding a meeting with Trump, Meadows aide Cassidy Hutchinson told the January 6 committee this week.

“I remember Pat saying to him something to the effect of, ‘the rioters have gotten to the Capitol. We need to go down and see the President now,'” Hutchinson said in a videotaped interview.

“And Mark looked up at him and said, ‘He doesn’t want to do anything, Pat,'” she said.

Cipollone, Hutchinson added, emphasized to Meadows the need for action to control the situation to Meadows. She said Cipollone “very clearly said this to Mark — something to the effect of, ‘Mark, something needs to be done or people are going to die and the blood’s going to be on your f**king hands. This is getting out of control. I’m going down there.'”

Meadows then handed his phones to Hutchinson and walked out of his office with Cipollone, Hutchinson told the committee.

Cheney tweeted Wednesday before the subpoena was announced that “as we heard yesterday, WH counsel Pat Cipollone had significant concerns re. Trump’s Jan 6 activities. It’s time for Mr. Cipollone to testify on the record. Any concerns he has about the institutional interests of his prior office are outweighed by the need for his testimony.”

The subpoena compels Pat Cipollone to appear for deposition on Wednesday, July 6.