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Former White House adviser Pat Cipollone was the missing man at the hearings of the House Special Committee investigating the Jan. 6 riot. Although he was present at the most critical moments of the coup attempt, he has so far refused to testify officially.
That will now change with his agreement to give a videotaped interview. Although not under oath, lying to Congress is still a crime, so he has every reason to stick to the truth. This is yet another bad news for defeated former President Donald Trump.
Cipollone appeared for an informal interview with the panel, but he resisted speaking beyond a limited set of topics under claims of executive privilege. The Jan. 6 commission finally gave up on amicable negotiations and sent a subpoena last week. Faced with the prospect of criminal contempt and potential sanctions from the bar, Cipollone, a practicing attorney, agreed to at least appear.
His original claims to privilege seem to have fallen away. President Biden has waived executive privilege and others have already testified to communications with Trump, including former White House counsel Eric Hershman, former Justice Department officials and Cassidy Hutchinson, a top aide to former White House chief of staff Mark Meadows. Plus, Cipollone does not have attorney client privilege with Trump because his client was the US government (a concept Trump could never understand).
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As for Cipollone’s possibility of taking the Fifth, constitutional scholar Laurence Tribe tells me, “Cipollone could try to invoke his Fifth Amendment privilege against involuntary self-incrimination, but it doesn’t appear that he was personally involved in anything criminal, so the privilege would not apply.’
Cipollone clearly lacks the nerve of the 25-year-old Hutchinson, given that he will avoid the exposure that comes with public testimony. But his interview will be videotaped and therefore 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 testifies later before the commission or a grand jury. His testimony may also be cited in the commission’s final report.
Cipollone can answer numerous questions to corroborate other testimony or provide new evidence that only he can witness. 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 admit there was no voter fraud? 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, calling the election fraudulent as a “murder-suicide pact”? What did you mean by that? Has Trump indicated he understands it’s 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 realize 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 lawyers?
- What did you try to take away from Trump’s January 6 speech? Why? Were these changes rejected, and if so, who rejected them?
- Others testified that regarding Trump’s suggestion that he march on the Capitol on Jan. 6, you said, “We’re going to be charged with every crime we can imagine.” What did you mean by that? Did you explain to Trump the possible charges against him?
- Do you know why Trump wanted to go to the Capitol?
- What did you say to Trump after you dragged Meadows to speak with Trump on the afternoon of January 6?
- Did Trump ever suggest that the mob attack or kill the Vice President?
There is no guarantee that it will answer all these questions. As Norman Eisen, who served as co-counsel on the House Judiciary Committee during Trump’s first impeachment, tells me, Cipollone “could still try to raise privileges, of course on a case-by-case basis, and that would have to be negotiated . But this deal shows that he’s willing to negotiate, and I think that will be worked out with the White House.
If Cipollone refuses to answer critical questions, he will again be at risk of contempt charges. As Tribe explains, executive privilege would not apply at all to Cipollone’s observations and conversations with others. What’s more, Tribe says, “the criminal fraud exception would likely negate any privilege he might otherwise have.”
If Hutchinson’s testimony shamed Cipollone into cooperating, the country has another 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.
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