Former White Home lawyer Pat Cipollone might be the largest witness on January 6 – if he agrees to testify

The congressional committee investigating the January 6, 2021 riots at the United States Capitol is eager to have former White House adviser to President Donald Trump, Pat Cipollone, testify before that.

Cipollone was seen as a key witness in part because he allegedly resisted the then-president’s efforts to overturn the 2020 election results and was able to speak to the administration about Trump’s efforts to maintain maintain power.

But Cipollone was able to disobey the commission’s request that he testify, even though they are now supported by subpoenas. And if Cipollone did try to deny testimony, he could get away with it, even if his legal justification was, in the words of one legal expert, “very questionable.”

Pat Cipollone walks to the Capitol.

Pat Cipollone in January 2020. (Andrew Harrer/Bloomberg via AP)

Cipollone could also have significant “leverage” with the panel, the expert said, which would allow him to negotiate terms on what he will and will not talk about.

If Cipollone resists, he will rely on a rather obscure legal concept known as “executive privilege” to do so. Most cases of executive privilege involve a political party’s Congress seeking information from the opposition party’s executive branch officials. And because legal proceedings can drag on for years, most cases have been slow to proceed until the ruling party of one of the two branches loses an election.

And so over the past few decades, White House officials from both Republicans and Democrats have increasingly stated operating privileges and immune endorsement against giving mandatory (versus voluntary) testimony or documents before Congress. This does little to benefit members of Congress, who are looking for short-term results and have little interest in setting legal precedent in the long-term.

Asking for broad executive privilege is “something the executive branch does over and over again which is highly questionable, but it has never had an appellate court ruling and has never reached the Supreme Court,” Jonathan David Shaub, who works on executive privilege issues at the Department of Justice and is now a professor of law at the University of Kentucky.

A reproduction of then-President Donald Trump's meeting with White House lawyers and DOJ officials was shown during the committee's January 6 hearing.

A reproduction of then-President Donald Trump’s meeting with White House attorneys and DOJ officials was shown during a Jan. 6 committee hearing on June 23. (Jonathan Ernst/Reuters) )

“The constitutional rationale or doctrine laid out by the executive branch has been widely criticized, and every judge who has had a chance to address that issue has rejected it,” Shaub told Yahoo News. But until a case goes through all the courts, ultimately the Supreme Court, presidential administrations will continue to claim the broadest privilege they can get.

The deal that House Democrats made last year with Trump’s first White House adviser, Don McGahn, is a hugely missed opportunity to slow the runaway train that claims executive privilege represented, Shaub controversial at the time.

As for Cipollone, who served as a White House adviser for the last two years of Trump’s presidency and led to Trump’s reaction to his first impeachment trialthere were a few factors that might have encouraged him to cooperate with the January 6 committee and give sworn testimony – albeit perhaps within some limits or parameters.

According to the testimony of former Trump staffer Cassidy Hutchinson, Cipollone protested Trump’s post-election plot in 2020 to overturn the results and remain chairman in what committee Chairman Bennie Thompson has called “a targeted coup”.

Cassidy Hutchinson addresses the panel January 6.

Cassidy Hutchinson, a top aide to Trump’s White House Chief of Staff Mark Meadows, testified during the committee’s Jan. 6 hearing on Tuesday. (Brandon Bell/Getty Images)

And now, the panel has gone through six hearings and several more to come, not only exposing the political and moral misconduct of Trump and those around him, but also potentially malicious enough to build a strong case for criminal prosecution. Hutchinson told the committee that Cipollone’s comments before and during the January 6 attack on the Capitol show concern about criminal exposure to Trump and those around him.

According to Hutchinson, Cipollone pulled her aside on the morning of January 6 to warn her that “we will be charged with every crime imaginable” if they allowed Trump to lead a mob to Capitol in an attempt to block the election. not certified.

“Perhaps Cipollone feels the tide is turning and wants to go in the right direction,” Shaub said.

Then the Supreme Court Judgment in January that about 800 pages of documents from the Trump White House can be provided to the committee on January 6, despite Trump’s efforts to claim executive privileges over them.

“I think Cipollone is looking at that and saying, ‘This is an important precedent against me going in and saying this is all privileged,” Shaub said. “I think he’s considering that.”

There is also some precedent for senior officials of the executive branch to cooperate with a congressional investigation in unusual circumstances, such as when the George W. Bush administration waived the privilege and authorized it. then national security adviser Condoleezza Rice gave voluntary testimony before the 9/11 Commission. .

Condoleezza Rice raises her right hand as she takes the oath to testify before the 9/11 Commission.

Subsequent national security adviser Condoleezza Rice was sworn to testify before the 9/11 Commission on April 8, 2004. (Larry Downing/Reuters)

And then there’s the fact that Cipollone cooperated to some extent with the committee, conducting an informal interview with the panel in April.

“I wouldn’t be surprised if he said, ‘I’ll testify but here are the terms and here’s the limit on what I’m going to say,’” Shaub said. Cipollone can still justify the limitations of his testimony with statements of executive privilege.

And given the lack of legal oversight that applies to extensive executive privilege claims, Shaub said, Cipollone “has a lot of leverage” to negotiate a deal he’s comfortable with, like he did with his informal meeting in April.

The January 6 committee would likely accept such a deal, Shaub said. “He was such a valuable witness. They don’t have much enforcement power.”

Members of the January 6 committee sit at one of their public hearings.

Committee members January 6 at the panel’s fifth public hearing, on June 23. (Jonathan Ernst/Reuters)

An attorney speaking for Cipollone told the New York Times that Trump’s former attorney wanted to wait until he was subpoenaed to consider a more formal partnership, in part to create a legal rationale for employment. so.

“Of course, a subpoena is needed before the former White House adviser can even review the transcribed testimony before the committee,” the attorney told the Times.

“Cipollone previously provided an interview…informally at the request of the committee. Now that the subpoena has been issued, it will be assessed that the matter of privilege may be appropriate. “

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