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opinion | Cipollone will cooperate

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Former White House attorney Pat Cipollone was the missing man in the hearings of the committee investigating the Jan. 6 insurgency. Although he was present at the most critical moments in the coup attempt, he has so far refused to testify formally.

That will now change with his agreement to give a videotaped, transcribed interview. While not under oath, lying to Congress is still a crime, so he has every reason to stick to the truth. That’s even more bad news for defeated former President Donald Trump.

Cipollone appeared for an informal interview with the panel, but he resisted speaking outside a limited number of topics with claims of executive privilege. The Jan. 6 commission eventually gave up on friendly negotiations and sent a subpoena last week. Facing the prospect of criminal contempt and possible sanctions from the bar, Cipollone, a working attorney, agreed to at least show up.

It seems that his first claims to privilege have expired. President Biden has relinquished administrative law and others have already testified about communications with Trump, including former White House attorney Eric Herschmann, former Justice Department officials and Cassidy Hutchinson, a top aide to former White House Chief of Staff Mark. Meadows. In addition, Cipollone does not have attorney-client privilege with Trump, as his client was the US government (a concept Trump could never understand).

As for the possibility of Cipollone taking the Fifth, constitutional scientist Laurence Tribe tells me, “Cipollone could try to invoke his Fifth Amendment privilege against forced self-incrimination, but it doesn’t look like he was personally involved in anything criminal, so that privilege would not apply.”

Cipollone apparently lacks the guts of 25-year-old Hutchinson, as he will avoid the exposure that comes with public testimonials. But his interview will be videotaped and will therefore be used in future hearings. His testimony can also be used by the commission and by prosecutors to, among other things, cross-examine him if he later testifies before the commission or a grand jury. His testimony can also be cited in the commission’s final report.

Cipollone can answer a whole host of questions to corroborate other testimonials or provide new evidence that only he may have seen. For example:

  • How did John Eastman, the chief architect of the coup plot, end up giving legal advice to Trump?
  • Did Eastman or Meadows ever admit there was no voter fraud? Has Trump done that?
  • Others have testified that you described the letter written by Jeffrey Clark, the Justice Department official who Trump sought to appoint as acting attorney general, declaring the election fraudulent as a “murder-suicide pact”? What do you mean? Did Trump indicate that 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 appeals to election officials in Georgia and other states? Did Trump understand that this behavior was illegal?
  • Did you advise Trump to concede the election? What conversations did he have with Vice President Mike Pence and Pence’s attorneys?
  • What have you tried to remove from Trump’s January 6 speech? Why? Were those changes rejected, and if so, who rejected them?
  • Others have testified that regarding Trump’s proposal to have him march to the Capitol on January 6, you said, “We will be indicted for every crime imaginable.” What do you mean? Have you explained to Trump the possible charges he could face?
  • Do you know why Trump wanted to go to the Capitol?
  • What did you say to Trump after dragging Meadows to talk to Trump on the afternoon of January 6?
  • Has Trump ever suggested that the mob should attack or kill the Vice President?

There is no guarantee that he will answer all of these questions. As Norman Eisen, who served as a co-counselor to the House Judiciary Committee during Trump’s first impeachment, tells me, Cipollone “can of course still try to increase privileges, of course, per question and 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.”

When Cipollone refuses to answer critical questions, he is once again at risk for the charges of contempt. As Tribe explains, administrative law would not apply at all to Cipollone’s observations and conversations with others. In addition, Tribe says, “the crime fraud exception would probably negate any privilege he would otherwise have.”

If Hutchinson’s testimony prompted Cipollone to cooperate, the country has even more reason to commend 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 getting closer.

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