Pat Cipollone saw much as Trump’s White House counsel. He could have a hard time shielding information from a federal grand jury.

  • Pat Cipollone received a subpoena to testify before a grand jury in the Jan. 6 investigation.

  • Cipollone invoked executive privilege in previous testimony before the House January 6 panel.

  • Prosecutors can more easily get information from Trump’s White House counsel.

In a nondescript conference room, Pat Cipollone, former Trump White House adviser, gave ruthless assessments last month of the desperate efforts of the former president and his allies to undo the 2020 election.

But, sitting next to his attorney, Cipollone would only go so far in his closed-door testimony before the House committee investigating the January 6, 2021 Capitol attack. When asked about direct conversations with Trump, he invoked administrative law to keep those communications confidential.

With Cipollone facing a grand jury subpoena, it is expected to be harder to protect those discussions behind privilege.

The grand jury subpoena of Cipollone was just the latest sign that the Justice Department is approaching Trump and his inner circle as it investigates efforts to reverse the former president’s loss to Joe Biden. With Cipollone, the grand jury has demanded testimony from Trump’s top White House attorney, who was familiar with — and against — machinations to prevent the peaceful transfer of power.

Cipollone appeared to be invoking executive privilege without significant opposition from the Jan. 6 House committee. But legal experts said federal prosecutors could more easily break that privilege as they pursue new details about Trump’s talks and behavior around Jan. 6.

“Usually the privilege involves the legislature seeking information from the executive branch. Here it is the executive branch, in the form of DOJ, that seeks its own information,” said Randall Eliason, a law professor at George Washington. University and former top corruption prosecutor in the US attorney’s office hearing Jan. 6 cases. “The current president has not claimed a privilege. In addition, it is a limited privilege and cannot be invoked to conceal information about a possible criminal offense.”

Indeed, more than two decades ago, a federal appeals court in Washington, DC, noted that executive privilege “can be overcome by appropriately addressing the need for evidence in criminal cases and in grand jury proceedings.” to show.”

In 1998, the United States Court of Appeals for the DC Circuit considered a White House attorney’s allegations of executive privilege and so-called “government attorney-client” privilege as the basis for denying grand jury questions about his conversations with then-President Bill Clinton. At the time, Clinton was facing an investigation into whether he had committed perjury and obstruction of justice in a sexual harassment lawsuit in which he was a defendant.

In the case, involving Deputy White House attorney Bruce Lindsey, the DC Circuit made a strong appeal to government attorneys to reveal any evidence of criminal wrongdoing.

“When an executive attorney is called before a federal grand jury to testify about alleged crimes within the executive branch, reason and experience, duty and tradition dictate that the attorney will provide that evidence,” the DC Circuit ruled. “With regard to investigations into federal crimes, and in particular crimes committed by government officials, state attorneys are in a very different position than members of the private bar. Their job is not to defend clients against criminal charges and the is not about violators of public exposure.”

Neil Eggleston, who advocated the Lindsey case on behalf of the Clinton White House, predicted last month that Cipollone would receive a grand jury subpoena. Write on the blog Just safetyEggleston outlined the “many good and overlapping reasons” why other top Trump attorneys — including former Attorney General William Barr and other Justice Department officials — concluded they could specify their dealings with the former president.

“In the context of the grand jury, it is only more apparent that any claim of privilege would collapse: The relevant legal privileges belong to the branch of the federal government that would lead the investigation, and a balanced analysis would overwhelmingly satisfy the DOJ’s need. testimony to any compensatory consideration,” wrote Eggleston, who served as White House counsel at the end of the Obama administration.

“This conclusion is reinforced,” he continued, by the DC Circuit ruling in the Lindsey case.

That ruling is likely to come into play as the Justice Department is reportedly preparing a lawsuit to force former White House officials to testify about Trump’s talks and behavior around Jan. 6. CNNwho first reported on the Justice Department’s preparations, prosecutors expect Trump to claim executive privileges to shield information from the federal grand jury as it increasingly scrutinizes the former president’s inner circle .

In recent grand jury appearances, two former Vice President Mike Pence’s top aides — Marc Short and Greg Jacob — declined to answer questions about their direct interactions with Trump, CNN reported. Prior to their testimony, their attorneys and prosecutors outlined questions they would avoid to circumvent potential privilege issues, with the option to return to those areas of investigation at a later date.

During its latest public hearings, the House Committee on Jan. 6 played back footage of the taped interview with Cipollone, who praised Pence for refusing to bow to Trump’s pressure to unilaterally block the certification of Biden’s victory. In his testimony, Cipollone suggested that Pence should receive the Presidential Medal of Freedom and called January 6 a “terrible day for this country.”

In his testimony, Cipollone also told how he knocked away some of Trump’s most outlandish ideas for staying in power. For example, he recalled his concerns about a plan to have the military confiscate voting machines, even after several top officials told Trump his claims of widespread election fraud were unfounded. And he recalled that he “strongly opposed” Trump’s consideration of Sidney Powell, a conservative lawyer known for her embrace of conspiracy theories, to lead a special prosecutor’s investigation into election fraud.

“You don’t get much closer to Trump than White House counsel,” Eliason told Insider. “If you talk about signs that they are moving up the ladder, the Pence assistants were one sign, and this is a more important sign. He has the potential to provide really valuable information that would be very damaging to the president.”

Read the original article Business Insider

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