The congressional committee investigating the Jan. 6, 2021, riot at the U.S. Capitol is very eager to have former President Donald Trump’s White House counsel Pat Cipollone testify before it.
Cipollone is seen as a key witness in part because he reportedly resisted the then president’s efforts to overturn the 2020 election results and can speak with authority about Trump’s attempts to stay in power.
But Cipollone might not go along with the committee’s requests for him to testify, even though they’re now backed up by a subpoena. And if Cipollone does indeed try to duck testifying, he might be able to get away with it, even if his legal justification is, in the words of one legal expert, “highly questionable.”
Cipollone also may have significant “leverage” with the panel, the expert said, which would allow him to negotiate the terms of what he would and would not talk about.
If Cipollone resists, he’ll rely on a rather vague legal concept known as “executive privilege” to do so. Most executive privilege cases involve a Congress of one political party seeking information from executive branch officials of the opposite party. And because the legal process can be dragged out for years, most cases have been slow-walked to death until the party in power of either branch loses an election.
And so over the past few decades, White House officials from both the Republican and Democratic parties have claimed increasingly broad executive privilege and testimonial immunity to resist giving compelled testimony (as compared to voluntary testimony) or documents to Congress. This gives little recourse for members of Congress who are looking for results in the short term and are less interested in establishing a legal precedent in the long term.
Claiming broad executive privilege is “something the executive branch does over and over again that’s highly questionable, but it’s never had an appellate court ruling and never reached the Supreme Court,” said Jonathan David Shaub, who worked on executive privilege matters at the Justice Department and is now a law professor at the University of Kentucky.
“The constitutional rationale or doctrine that the executive branch has given has been widely critiqued and every judge that has had the opportunity to address it has rejected it,” Shaub told Yahoo News. But until a case is taken all the way through the courts, ultimately to the Supreme Court, presidential administrations will continue to claim as broad a privilege as they can get away with.
The deal that House Democrats made last year with Trump’s first White House counsel, Don McGahn, was a huge missed opportunity to slow the runaway train that executive privilege claims have come to represent, Shaub argued at the time.
As for Cipollone, who served as White House counsel for the last two years of Trump’s presidency and led Trump’s response to his first impeachment trial, there are a few factors that may encourage him to cooperate with the Jan. 6 committee and give sworn testimony — although perhaps within some limits or parameters.
According to testimony by former Trump staffer Cassidy Hutchinson, Cipollone was opposed to Trump’s post-election plot in 2020 to overturn the results and remain president in what committee Chair Bennie Thompson has called “an attempted coup.”
And the panel has now, through six hearings and with a few more to come, exposed not just political and ethical wrongdoing by Trump and those around him, but also potentially enough malfeasance to build a strong case for criminal prosecution. Hutchinson told the committee that Cipollone made comments before and during the Jan. 6 attack on the Capitol that indicated concern about criminal exposure for Trump and those around him.
According to Hutchinson, Cipollone pulled her aside on the morning of Jan. 6 to warn her that “we’re going to get charged with every crime imaginable” if they allowed Trump to lead a mob to the Capitol in an effort to prevent the election from being certified.
“Maybe Cipollone sees the tide turning and wants to get on the right side,” Shaub said.
Then there is the Supreme Court’s ruling in January that about 800 pages of documents from the Trump White House could be provided to the Jan. 6 committee, despite Trump’s attempt to claim executive privilege over them.
“I do think Cipollone is looking at that and saying, ‘This is a substantial precedent against me going in and saying this is all privilege,’” Shaub said. “I think he’s weighing that.”
There is also some precedent for high-ranking executive branch officials cooperating with a congressional investigation in extraordinary circumstances, such as when the George W. Bush administration waived privilege and allowed then national security adviser Condoleezza Rice to give voluntary testimony before the 9/11 Commission.
And then there’s the fact that Cipollone has already cooperated to some extent with the committee, doing an informal interview with the panel in April.
“I would not be surprised if he says, ‘I will testify but here are the terms and here are the limits about what I’m going to say,’” Shaub said. Cipollone could still justify the limitations on his testimony with executive privilege claims.
And because of the lack of legal scrutiny applied to the broad executive privilege claims, Shaub said, Cipollone “has a lot of leverage” to negotiate an agreement that he is comfortable with, as he did with his informal meeting in April.
The Jan. 6 committee would likely accept such an agreement, Shaub said. “He’s such a valuable witness. They don’t have a lot of enforcement power.”
A lawyer speaking for Cipollone told the New York Times that Trump’s former counsel wanted to wait until he was subpoenaed to consider more formal cooperation, in part to create a legal justification for doing so.
“Of course a subpoena was necessary before the former White House counsel could even consider transcribed testimony before the committee,” the lawyer told the Times.
“Cipollone has previously provided an informal ... interview at the committee’s request. Now that a subpoena has been issued, it’ll be evaluated as to matters of privilege that might be appropriate.”