Grand Jury Subpoenas Pat Cipollone, in Signal DOJ Is Weighing Trump Indictment

The news that federal prosecutors are seeking the testimony of Trump’s former White House counsel suggests their investigation is ramping up.

T he Justice Department’s issuance of a grand-jury subpoena to former White House counsel Pat Cipollone signals that the criminal investigation of former President Trump is ramping up.

Last month, we’ll recall, Cipollone agreed to sit for an interview with the House January 6 committee. It is important to understand: That was a heavily negotiated appearance in which conditions laid out by Cipollone had to be accommodated. Under Justice Department guidance that has long been followed by administrations of both parties, the president’s top advisers claim absolute immunity from compliance with congressional subpoenas. Moreover, as the lawyer for the president, the White House counsel is obliged by attorney–client privilege (ACP) to maintain the confidentiality of communications with the president and White House staff. (The White House counsel represents the president in his official capacity as president, so the scope of the ACP that applies to their communications is not the same as the scope of the ACP that applies to the president’s communications with his private lawyer.)

The theory of executive immunity from congressional information demands is rooted in the Constitution’s separation-of-powers principles. Ordinarily, the immunity is aggressively defended by the Justice Department, an important executive-branch component. So it is notable that DOJ has substantially refrained from defending executive privilege in connection with the House January 6 committee’s investigation. (This is because President Biden, the incumbent, has not supported his predecessor’s attempts to invoke executive privilege in the committee’s investigation.)

Obviously, though, a current or former executive-branch official’s constitutionally based immunity from congressional inquiries does not extend to inquiries undertaken by the executive branch itself.

The Justice Department is conducting a criminal investigation with an eye toward prosecuting penal offenses, not a legislative inquiry with an eye toward potentially enacting curative laws. Going back to the Watergate era, the Supreme Court and the lower courts have reasoned that there is a higher public interest at stake in criminal investigations of public officials than in congressional inquiries. While the mere existence of a criminal investigation does not eviscerate executive privilege, the privilege must yield if prosecutors demonstrate that they have a specific need for important evidence, and that that evidence is not reasonably available from other sources. Ergo, unless prosecutors had concluded Cipollone possessed information vital to possible criminal charges, they would not have subpoenaed him to appear before the grand jury.

Here, significantly, the Justice Department itself has issued the subpoena to the former White House counsel. Virtually all criminal investigations in which executive-privilege claims have arisen have been conducted by specially appointed prosecutors: Watergate-era “special prosecutors,” the “independent counsels” appointed under a now-defunct statute, or “special counsels” named under currently applicable federal regulations.

These prosecutors are lawyers brought in from outside the government when the Justice Department is laboring under a conflict of interest — most often because DOJ, which is part of the incumbent administration, is in the position of investigating members of that administration, perhaps including the president himself. Although special prosecutors are technically part of the Justice Department, they operate with a wide berth of independence. Typically, they are not indulgent of privileges that empower the administration to conceal information. For example, in the Whitewater investigation, independent counsel Ken Starr subpoenaed Clinton deputy White House counsel Bruce Lindsay and Clinton adviser Sidney Blumenthal, and prevailed in court over the administration’s objections to those subpoenas.

By contrast, the Justice Department has a high interest in maintaining the full scope and potency of executive privileges, and thus ordinarily fights hard to defend and preserve them. So it is telling that the Justice Department itself has issued the subpoena to Cipollone in a situation that clearly triggers both executive privilege and a former president’s ACP.

If the Justice Department is fighting to pierce, rather than preserve, the privileges Cipollone might otherwise claim here, Cipollone and his private lawyers won’t have much luck asserting those privileges. They might try to assert executive privilege to avoid answering some questions, as they did when he was interviewed by the January 6 committee. But because President Biden has mostly waived executive privilege in this matter, such assertions would be likely to fail. (The D.C. Circuit, upheld by the Supreme Court, has already rejected Trump’s effort to claim privilege over Trump administration materials held by the National Archives and subpoenaed by the January 6 committee.)

As for asserting ACP, Cipollone would probably not get far with that either. To repeat, he was not the president’s private lawyer; he represented Trump in the conduct of lawful presidential duties, and only in the conduct of those duties. Moreover, when ostensibly privileged attorney–client communications are sought by prosecutors, it is usually in a context where either (a) the communications were arguably not privileged (because they were not confidential or didn’t specifically involve legal advice); or (b) the “crime-fraud exception” to the privilege applies (i.e., the law does not grant confidentiality, because the communications in question furthered a fraud or criminal-law violation).

Based on recent reporting, we can conclude that, this past spring, the focus of the Justice Department’s investigation shifted from the violence of the riot (in connection with which well over 800 people have been charged) to the activities of then-president Trump and the circle of advisers (mainly private lawyers) with whom he schemed to remain in power.

In particular, the DOJ appears to be homing in on whether the former president and his confederates conspired (a) to obstruct the constitutionally mandated January 6 joint session of Congress from counting state-certified electoral votes (corruptly obstructing Congress is a crime under Section 1512(c)(2) of the federal code); and/or (b) to defraud the United States government, specifically, by deceptively undermining its lawful functions, including the orderly transition of presidential administrations (a crime under Section 371, which I previously discussed in the context of the Durham probe).

The emerging theory appears to be as follows:

Trump and his advisers initially hoped to reverse the outcome of the election by a flurry of lawsuits charging fraud and other election irregularities, which they implausibly hoped would inspire Republican-controlled legislatures in key states won by Biden to invalidate the popular vote and substitute their own conclusion that Trump had won. The Trump team assembled alternative slates of Trump electors, who would be responsible for casting these states’ electoral votes for Trump if their legislatures could be convinced to overturn Biden’s popular-vote wins. In talking among themselves, even the Trump insiders referred to these purported slates as “fake” electors. Still, it appears that many of the Trump supporters who agreed to be electors saw themselves as not fake but contingent — i.e., they would be called into service only if the state election outcome were reversed by a court ruling or some other lawful action.

This idiotic plan had no prospect of success; not a single state legislature cooperated. When it became clear that they were getting nowhere with the legislatures, in their desperation, Trump’s minions settled on a new, similarly inane strategy that targeted the January 6 joint session of Congress: Convincing Vice President Pence to refuse to count the slates of Biden electors from Trump-contested states.

In this implausible scenario, congressional Republicans would object to the counting of these states’ votes, and Pence would sustain those objections. Both would rely in part on the fact that there were ersatz slates of Trump electors, even though these slates had no legal standing: They not been officially appointed under state law; their status and votes were not certified under state law; and the time for contesting the Biden slates that had been certified under state law had lapsed under federal law — the state certifications were deemed final on December 8, 2020, and the Electoral College had met and voted six days after that, yielding the required majority for Biden.

Notwithstanding the hyperbole of the January 6 committee and the media–Democrat complex, our democracy was not hanging by a thread. This second bizarre scheme, much like the first, had no chance of success. It lacked anything close to sufficient congressional support. Pence rejected it. Even if Pence had lost his mind and gone along with it, congressional Democrats, with significant Republican support, would have overruled the Trump supporters’ objections to particular states. Bipartisan congressional leadership would not have allowed Pence to discount votes or remand the matter back to the states for further auditing — which the state legislatures, in any event, would have refused to conduct. As it happened, the riot broke out and took the steam out of the scheme. There was a bit of theater from Trump’s allies when Congress reconvened that night, but it quickly petered out, the votes were counted, and Biden’s victory was acknowledged.

All that said, it is not required that a scheme have a chance of success in order for it to be an actionable conspiracy under federal criminal law. A conspiracy is an agreement to violate the law. In conspiracy, the crime is the agreement itself, so it does not matter whether the criminal objective of the agreement ultimately is, or could have been, achieved.

A few final thoughts.

First, Cipollone’s testimony is sought because he is obviously a witness to relevant conversations about these schemes. This includes Trump’s unsuccessful attempt to pressure the Justice Department into inducing legislatures in contested states to revisit their election results based on largely empty allegations of fraud. The grand jury has already heard testimony from two top Pence aides — the former vice president’s chief of staff, Marc Short, and his former counsel, Greg Jacob — who witnessed, among other things, the pressure the Trump team brought to bear on Pence.

Second, the Justice Department has not confirmed whether Trump is the subject or target of its investigation. Legally, that is irrelevant. If the grand jury were to subpoena Trump himself for testimony or documents, Trump’s counsel would ask prosecutors what his status was. Prosecutors would not be required to answer such a question, but they probably would answer it — if they didn’t, Trump’s lawyers would be safe in assuming that he was a target — and in doing so, their ethical obligation would be to avoid misleading the president’s legal team. Still, there is nothing binding about a prosecutor’s assessment of a person’s status (target, subject, or mere witness) at a given time, since it can change on a dime if new incriminating evidence is uncovered. What matters is the fact that the DOJ is investigating, not what prosecutors may say about whether Trump’s indictment is likely.

Third, in our NR podcast, I have repeatedly stated my belief that Trump’s indictment is probable — I’ve estimated that there’s a 60 percent chance it happens. My reasoning has been that, even if it is a bad idea for various reasons, Trump’s indictment is something the Biden administration can give to its restless base. Biden can’t deliver the Left’s dream legislative agenda, and if he tried to impose it by “pen and phone” administrative fiat, he would be blocked by the courts. But the DOJ has unilateral, unreviewable discretion when it comes to charging criminal offenses. The Democratic base knows that, which is why the pressure on Merrick Garland has intensified. No one can stop President Biden and Attorney General Garland from indicting Trump if they choose to do so.

Fourth, the likelihood of an indictment against Trump has to be even greater now: Again, the Justice Department itself has subpoenaed the former White House counsel, even though the DOJ would ordinarily be expected to fight subpoenas of former top executive officials. And the DOJ is presumably poised to invoke the crime-fraud exception if Cipollone tries to assert the ACP.

Finally, I continue to believe it would be a mistake with terrible ramifications for the country if the Biden administration and its Justice Department were to charge former president Trump with non-violent crimes arising out of the January 6 investigation. If there is evidence that Trump conspired in or willfully abetted the use of force during the riot — there does not appear to be such evidence at this point — he would deserve to be charged like anyone else who was criminally complicit in violence. To the contrary, the obstruction and fraud-conspiracy charges that seem to be in play would amount to criminalizing a frivolous legal theory. That would not be a compelling basis for criminal prosecution. If the riot had not happened, it is inconceivable that the Justice Department would allege such crimes against a former president and likely future opponent of the incumbent president’s party (indeed, of the incumbent president himself). The riot should not change that analysis unless there is a basis to charge the former president for causing the riot.

I suspect that AG Garland knows this, but it probably won’t make a difference. The Democratic base wants Trump charged, and what the Democratic base wants is apt to be decisive here.