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Cipollone Privilege Bid Would ‘Run Out’ Clock on Jan. 6 Panel

July 1, 2022, 9:30 AM

A move by former White House counsel Pat Cipollone to assert privilege would slow the Jan. 6 committee’s push for revelations from the Donald Trump ally who was at the center of events tied to the US Capitol riot.

Attorney-client or executive privilege claims would likely fail to pass muster, though that wouldn’t stop Cipollone from using the tactic in response to the US House committee’s June 29 subpoena, said Stephen Gillers, a New York University law professor.

“He could show up and assert attorney-client privilege or executive privilege and there’s nothing the committee can do,” Gillers said, beyond asking the Justice Department to enforce the subpoena. “We’ve seen this show before, where the Trump administration uses the delay in the courts to frustrate the ability to get information.”

The House committee subpoenaed Cipollone to appear for a closed-door deposition after former White House aide Cassidy Hutchinson cited him repeatedly in testimony June 28. She said Cipollone urged her to make sure Trump wouldn’t go to the Capitol on Jan. 6 with his supporters, warning that they would be “charged with every crime imaginable.”

The subpoena came after an effort to convince Cipollone to voluntarily testify. Rep. Liz Cheney, R-Wyo., the vice chair of the panel, during a hearing June 21 implored him to join ex-Trump administration officials who willingly testified to the committee.

But in a June 29 tweet hours before the subpoena, Cheney appeared ready for the possibility of Cipollone invoking certain privileges to avoid answering questions.

“It’s time” for Cipollone to testify, Cheney said. “Any concerns he has about the institutional interests of his prior office are outweighed by the need for his testimony.”

Cipollone, now a name partner at litigation boutique Ellis George Cipollone, didn’t respond to a request for comment.

Compromise

The House committee will seek to compromise with the former top White House lawyer, said Jonathan Shaub, an assistant law professor at the University of Kentucky and former attorney-adviser in the Department of Justice’s Office of Legal Counsel.

“If they push too hard they’ll lose him to a drawn out court battle that’s never resolved,” he said.

In its subpoena, the House panel said Cipollone previously sat for an informal interview in April but that he declined to cooperate further, “including by providing on-the-record testimony.”

The informal interview raises questions about what Cipollone has already told the panel, said Jan Jacobowitz, an adjunct professor at the Miami University School of Law.

“If he’s already shared information, it would be even more unusual to go back and assert a privilege just because you’re subpoenaed,” she said.

Obstacles

A Cipollone claim of privileges wouldn’t be the first time the committee has faced obstacles in getting testimony. More than 30 witnesses have invoked their 5th amendment right against self incrimination, Cheney has noted.

Former White House chief of staff Mark Meadows has invoked claims of executive privilege, which Cheney said is the subject of litigation. Former Trump aides Steve Bannon and Peter Navarro refused to comply with subpoenas and have since faced indictments for contempt of Congress.

The Supreme Court in January rejected Trump’s bid to block the release of some White House papers on executive privilege grounds, after Joe Biden waived that privilege.

Gillers said Cipollone could use the time it would take to overcome his privilege assertions to “run out the clock” on the Jan. 6 committee.

“Even if there were an attorney-client privilege for Trump to assert, it would require that the allegedly privileged communications be for the purpose of giving legal advice,” Gillers said. “Even that would be lost if Trump’s purpose in consulting Cipollone was to commit a crime or fraud.”

— With assistance from Billy House

To contact the reporter on this story: Justin Wise at jwise@bloombergindustry.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes at jhughes@bloombergindustry.com