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Opinion Trump faces new danger in subpoena of White House counsel

Former White House counsel Pat Cipollone. (AP Photo/Patrick Semansky, File)
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It’s useful to think of the Jan. 6 scandal as having two distinct but interlocking parts. The first is the procedural coup: the weeks-long, multi-tentacled effort to subvert the election via corrupt administrative means. The second is the attack on the Capitol: the effort to complete the procedural coup with the last resort of mob intimidation and violence.

What makes Pat Cipollone, President Donald Trump’s White House counsel, a unique figure in this whole saga is that more than perhaps any other player, he had profound misgivings about the legal dangers involved with both these interlocking parts. Cipollone literally had a front-row seat on internal deliberations over whether each one put Trump in serious legal peril.

In both cases, according to testimony we’ve heard at the House Jan. 6 select committee hearings, Cipollone thought the answer was yes.

The committee’s new subpoena of Cipollone, delivered Wednesday night, brings all this into sharper relief. He has extensive direct knowledge of how those two parts fit together into one big story — and he can shed light on how the through-line linking them is Trump’s potential criminality.

Cassidy Hutchinson told lawmakers on June 28 that former White House counsel Pat Cipollone was concerned about “potentially obstructing justice." (Video: Reuters)

We don’t yet know if Cipollone will cooperate with the subpoena or fight it in court. He may insist the subpoena threatens White House institutional arrangements. But as legal experts point out, testimony can be structured to avoid any such threat, and Cipollone now has a legal obligation to honor the subpoena, which is overwhelmingly in the public interest.

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And we do know this: The committee’s focus on Cipollone’s role suggests it is bearing down on an accounting that is already increasingly dangerous for Trump.

“He was a witness to major aspects of our investigation,” Rep. Jamie B. Raskin (D-Md.), a member of the committee, told me. “It seems as if he was putting up a lot of red flags and trying to hang on to the rule of law as much as possible.”

The simplest way to grasp the importance of Cipollone’s bearing witness is to look at the events he was privy to, and how he reacted to them, according to testimony:

  • Cipollone met with Trump and his attorney general, William P. Barr, when Barr flatly told Trump it was highly improper to pressure the Justice Department to manufacture fake evidence of fraud.
  • Cipollone was present when Trump threatened to install a new leader at the Justice Department who would act on his false beliefs of fraud, prompting top officials to warn that this was potentially unlawful and to threaten mass resignations.
  • Cipollone warned that Trump’s scheme to have fake presidential electors vote for him was legally unsound.
  • Cipollone warned Trump lawyer John Eastman not to pressure Vice President Mike Pence to subvert the electoral count, which was the central aim of the coup attempt, and which aides told Trump and Eastman was illegal.
  • Cipollone repeatedly warned against Trump going to the Capitol on Jan. 6, claiming it would result in Trump and/or others being “charged with every crime imaginable.”

“He likely can make it clear beyond peradventure that the illegality of the challenges to the election and the riot planning was known to Trump,” trial lawyer David Lurie told me. “Cipollone is a dangerous witness for Trump because it was his job to speak up when legal lines were being crossed.”

The through line is of interest here. There is already a strong case that Trump committed extraordinarily corrupt acts — and possibly crimes — relating to the procedural machinations. We still don’t quite have a full picture of how premeditated and corrupt, or indeed potentially criminal, it was for Trump to assemble, manipulate and incite the mob on the day itself.

Cipollone, whose job was partly to prevent Trump (and others in the White House) from committing crimes, warned that Trump was at legal risk due to the mob itself. The hearings showed evidence that Cipollone repeatedly worried that if Trump went to the Capitol on Jan. 6, it might implicate various statutes, including obstruction of the electoral count and conspiracy to defraud the United States. Rebellion or insurrection might also be operative.

We need to see Cipollone pressed on why he worried that Trump’s manipulation of the mob was putting him and others in great legal peril. This would help illuminate the potential legal implications of Trump’s use of the mob to complete the coup.

“He understood the legal dangers attendant to Trump’s incitement of the mob,” Raskin told me. “Any serious lawyer — like Cipollone — would have been tremendously concerned about all the president’s efforts to summon and form that crowd, and then incite and direct it to go to the Capitol."

Raskin said developing this picture is one of many things the committee wants to pursue. “We’re interested in defining all the offenses Cipollone was concerned about.”

Even if Cipollone does resist testifying, we can see that this is the big story the committee will conclude by telling. We still don’t know if Trump or his co-conspirators will face prosecution. But the more forcefully these elements are nailed down, the greater the danger they face.

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