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Former White House lawyer Pat Cipollone has been the missing man in the hearings of the House select committee investigating the Jan. 6 insurrection. Although present at the most critical moments of the coup attempt, so far he has refused to formally declare.
That will now change with his agreement to give a video-recorded and transcribed interview. Even if he is not under oath, lying in Congress is still a crime, so he has every reason to stick to the truth. This is even worse news for former President Donald Trump.
Cipollone has appeared for an informal interview with the panel, but declined to speak beyond a limited set of issues with executive privilege claims. The Jan. 6 committee finally dropped the friendly negotiations and sent a subpoena last week. Faced with the prospect of criminal contempt and possible sanctions on the part of the lawyer, Cipollone, a working lawyer, agreed to at least appear.
It seems that his initial claims of privilege have fallen by the wayside. President Biden has relinquished his executive privilege, and others have already testified about communications with Trump, including former White House attorney Eric Herschmann, former Justice Department officials, and Cassidy Hutchinson, one of the senior aides to former White House chief of staff Mark Meadows. In addition, Cipollone has no attorney client privilege with Trump, as his client was the U.S. government (a concept Trump could never understand).
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As for the possibility of Cipollone taking the Fifth, constitutional scholar Laurence Tribe tells me, “Cipollone might try to invoke his privilege of the Fifth Amendment against forced self-incrimination, but he does not appear to be personally involved in anything criminal, so the privilege would not be applicable “.
Apparently, Cipollone does not have the nerves of Hutchinson, 25, as he will avoid the exposure that public testimony entails. But his interview will be videotaped and therefore used in future audiences. His testimony can also be used by the committee and prosecutors to, among other things, cross-examine him if he later testifies before the committee or before a grand jury. His testimony can also be cited in the commission’s final report.
Cipollone can answer a lot of questions to corroborate other witnesses or provide new evidence that only he has been able to witness. For example:
- How did you end up giving legal advice to Trump John Eastman, the chief architect of the coup?
- Did Eastman or Meadows ever admit that there was no election fraud? Did Trump do that?
- Have others testified that you described the letter written by Jeffrey Clark, the Justice Department official whom Trump wanted to appoint acting Attorney General, declaring the election as fraudulent as a “murder-suicide pact”? What did you mean by that? Did Trump indicate that he understood it to be illegal?
- Why did Trump want to replace incumbent Attorney General Jeffrey Rosen? Why did Rosen refuse to sign Clark’s letter?
- What do you know about Trump’s calls for election officials in Georgia and other states? Did Trump understand that this conduct was illegal?
- Did you advise Trump to grant the election? What conversations did you have with Vice President Mike Pence and Pence’s attorneys?
- What did you try to remove from Trump’s January 6 speech? Because? Were these changes rejected and, if so, who rejected them?
- Others have testified that, with regard to Trump’s proposal to leave the Capitol on Jan. 6, you said, “We will be charged with every crime imaginable.” What did you mean by that? Did you explain to Trump the possible charges he could face?
- Do you know why Trump wanted to go to the Capitol?
- What did you say to Trump after dragging Meadows to talk to Trump on the afternoon of January 6th?
- Did Trump ever suggest that the mob should attack or kill the vice president?
There is no guarantee that you will answer all these questions. As Norman Eisen, who served as an adviser to the House Judiciary Committee during Trump’s first ouster, tells me, Cipollone “can still try to increase privileges, of course, question by question and that will have to be negotiated. But this agreement shows he is willing to negotiate, and I think it will be resolved with the White House. “
If Cipollone refuses to answer critical questions, he will again be in danger of the charges of contempt. As Tribe explains, executive privilege would not apply at all to Cipollone’s observations and conversations with others. In addition, Tribe says, “the felony-fraud exception would likely override any privilege you would otherwise have.”
If Hutchinson’s testimony embarrassed Cipollone to cooperate, the country has more reason to praise her. The committee with Cipollone’s help should now be able to reach Trump’s inner circle. Trump has every reason to panic. The walls are closing.