Justice Department grand jury subpoenas to former White House attorney Pat Cipollone and other members of former President Trump’s inner circle mark a turning point in the federal investigation into the application of the law on the former president.
The grand jury inquiry has considerably more power than the House Select Committee on Jan. 6 to unravel any claims of executive privilege the former president might raise — an issue that came up with Cipollone.
When Cipollone agreed to testify before the Jan. 6 panel, he declined to answer some questions about his conversations with Trump, citing attorney-client and executive privileges.
Experts say these claims of privilege would likely not hold up in court if Trump or Cipollone tried to use them to conceal information from a grand jury.
“The Justice Department’s grand jury subpoena is a much more powerful tool than a congressional subpoena,” said Neil Eggleston, who served as White House counsel for the Obama administration and served as a Represented former President Clinton in a dispute over the grand counsel of another White House attorney. jury testimony.
“In my opinion, it would be inconceivable for the Department of Justice not to win,” Eggleston added.
Cipollone’s January 6 ideas are likely of great interest to prosecutors after he emerges as a key figure in the congressional investigation.
The select committee presented evidence that the former top White House lawyer expressed concerns about Trump’s conduct in the weeks leading up to the January 6, 2021 attack on the Capitol.
Cassidy Hutchinson, Trump’s White House aide, testified in June that Cipollone issued stern warnings in the days leading up to Jan. 6 when it became clear Trump wanted to lead his supporters on a march to the Capitol to protest Congressional certification of his election. defeat against President Biden.
“Please make sure we don’t go up to the Capitol, Cassidy,” Cipollone told Hutchinson, according to his testimony. “We are going to be charged with every crime imaginable if we make this move happen.”
While lawmakers on the select committee had little recourse when Cipollone and others declined to answer questions about their conversations with Trump, legal experts say federal prosecutors have more tools at their disposal and that any claims by the Executive privilege in a grand jury setting would face an uphill battle in the courts.
ABC News reported on Tuesday that a federal grand jury subpoenaed Cipollone, making him the highest-ranking Trump White House official to be targeted in the DOJ’s Jan. 6 investigation.
The select committee has fought to enforce its investigative demands in court in more than a dozen civil lawsuits over the past year. Although the panel had some success, business can drag on for months.
In cases where the target of a congressional subpoena refuses to comply, the House also has the option of issuing a criminal contempt remand to the Justice Department for prosecution, which lawmakers did with four of the close Trump allies.
But prosecutors ended up charging just two of them — Steve Bannon and former White House trade adviser Peter Navarro — with criminal contempt of Congress, and neither appears to be closer to cooperating with the government. committee. A jury convicted Bannon last month of two counts of contempt, each carrying a sentence of 30 days to a year in prison.
The Justice Department has declined to press charges against two other Trump aides who have been held in contempt, social media guru Dan Scavino and former White House chief of staff Mark Meadows.
Meadows filed a civil lawsuit against the committee late last year, challenging his subpoena and claiming to be protected by testimonial immunity for White House advisers. The case has been stuck in court for eight months and it is unclear when it could be resolved.
While the Supreme Court has said former presidents have some authority to assert executive privilege, some legal scholars say such a claim would be unlikely to protect information sought in a criminal investigation.
Jonathan David Shaub, a University of Kentucky law professor and former attorney for the Justice Department’s Office of Legal Counsel, said he believed any assertion of privilege by Trump or Cipollone before the grand jury would be “frivolous and that federal prosecutors would be able to move quickly to force compliance.
The Department of Justice (DOJ) “has a much more efficient and expeditious enforcement mechanism to go to the district court and have these privilege claims adjudicated and almost certainly dismissed,” Shaub said.
“My assumption is given how tenuous his privilege claims are that we’re not going to hear much else, that he’s going to enter into negotiations and eventually get the best he can from the DOJ and then comply , because he doesn’t have much of a leg to stand on,” he added.
When courts weigh claims of privilege against subpoenas, the main question judges seek to answer is whether the need for information is compelling enough to outweigh the executive branch’s need for confidentiality.
In 1974, the Supreme Court unanimously sided with the Watergate special prosecutor when then-President Nixon attempted to overturn a grand jury subpoena for White House tape recordings.
Chief Justice Warren Burger wrote in the decision, “The broad assertion of privilege must yield to the demonstrated and specific need for evidence in an ongoing criminal trial.
In a more recent case, the Supreme Court rejected Trump’s offer to block the select committee from obtaining treasure troves of documents from his time in the White House. In an 8-1 ruling in January, judges declined to review a lower court’s ruling that the select committee’s need for documents would outweigh any assertion of privilege, even though Trump was still in office. ‘era.
Eggleston said he believed the courts would rule the same way if a privilege dispute were to arise from the grand jury investigation.
“I think that’s probably how the courts are going to think about that as well,” he said. “Because if you just apply a standard balancing test under US v. Nixon, I think it’s damning that the Justice Department showed a dire need for this testimony and President Trump’s interest in the Privacy at this point, especially after the January 6 hearings, is virtually nil.