Former White House counsel Pat Cipollone has been the missing man at the hearings for the House select committee investigating the Jan. 6 insurrection. Although present at the most critical moments in the coup attempt, until now he has refused to testify formally.
Cipollone has appeared for an informal interview with the panel, but he resisted speaking beyond a limited set of topics with claims of executive privilege. The Jan. 6 committee finally gave up friendly negotiations and sent out a subpoena last week. Faced with the prospect of criminal contempt and potential sanctions from the bar, Cipollone, a working lawyer, agreed to at least show up.
It seems his initial claims of privilege have fallen by the wayside. President Biden has waived executive privilege, and others have already testified about communications with Trump, including former White House lawyer Eric Herschmann, former Justice Department officials and Cassidy Hutchinson, a top aide to former White House chief of staff Mark Meadows. Plus, Cipollone has no attorney client privilege with Trump, since his client was the U.S. government (a concept Trump never could grasp).
As for the possibility that Cipollone takes the Fifth, constitutional scholar Laurence Tribe tells me, “Cipollone might try to invoke his fifth amendment privilege against compelled self-incrimination, but it doesn’t look like he was personally involved in anything criminal, so that privilege would not be applicable.”
Cipollone apparently lacks the nerve of 25-year-old Hutchinson, given that he will avoid the exposure that comes with public testimony. But his interview will be videotaped and therefore will be used in future hearings. His testimony also can be used by the committee and by prosecutors to, among other things, cross-examine him if he testifies later in front of the committee or a grand jury. His testimony can also be cited in the committee’s final report.
Cipollone may have answers to a slew of questions to either corroborate other testimony or provide new evidence only he may have witnessed. For example:
- How did John Eastman, the chief architect of the coup plot, end up providing legal advice to Trump?
- Did Eastman or Meadows ever concede there was no voter fraud? Did Trump?
- Others have testified that you described the letter written by Jeffrey Clark, the Justice Department official whom Trump wanted to appoint as acting attorney general, declaring the election as fraudulent as a “murder-suicide pact”? What did you mean by that? Did Trump indicate he understood it was illegal?
- Why did Trump want to replace acting attorney general Jeffrey Rosen? Why did Rosen refuse to sign Clark’s letter?
- What do you know about Trump’s calls to election officials in Georgia and other states? Did Trump understand this conduct was illegal?
- Did you advise Trump to concede the election? What conversations did he have with Vice President Mike Pence and Pence’s lawyers?
- What did you try to remove from Trump’s Jan. 6 speech? Why? Were those changes rejected, and if so, who rejected them?
- Others have testified that regarding Trump’s proposal for him to march to the Capitol on Jan. 6, you said “We’re going to get charged with every crime imaginable.” What did you mean by that? Did you explain to Trump the possible charges he might face?
- Do you know why Trump wanted to go to the Capitol?
- What did you tell Trump after you dragged Meadows to talk to Trump on the afternoon of Jan. 6?
- Did Trump ever suggest the mob should attack or kill the vice president?
There is no guarantee he will answer all of these questions. As Norman Eisen, who served as co-counsel to the House Judiciary Committee during Trump’s first impeachment, tells me, Cipollone “can still try to raise privileges, of course, on a question by question basis and that will have to be negotiated. But this deal shows that he is willing to negotiate, and I think that will be worked out with the White House.”
If Cipollone refuses to answer critical questions, he’ll be back in jeopardy for the contempt charges. As Tribe explains, executive privilege wouldn’t apply at all to Cipollone’s observations and conversations with others. Moreover, Tribe says, “the crime-fraud exception would probably override any privilege he might otherwise have.”
If Hutchinson’s testimony shamed Cipollone into cooperating, the country has further 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 in.