The news that the Justice Department has subpoenaed former White House counsel Pat Cipollone suggests new perils for Trump. But that’s not all: Ongoing revelations from the House Jan. 6 select committee are keeping the public informed about the sort of wrongdoing a criminal probe might focus on, making it harder for Trump to demagogue an investigation away.
Cipollone has been subpoenaed by a federal grand jury investigating events related to the attack on the Capitol, ABC News reports. It’s unclear which grand jury subpoenaed him — one is focused on Trump’s fake electors scheme, another on Jan. 6 itself — but the New York Times adds this reporting:
Mr. Cipollone’s appearance has been requested at a time when federal prosecutors are sharpening their focus on the conduct of Mr. Trump, and not simply the people who were advising him.
In recent weeks, investigators have asked witnesses questions about Mr. Trump and his actions, including of people who worked in the White House. Two former senior advisers to Vice President Mike Pence — his chief of staff, Marc Short, and his chief counsel, Greg Jacob — recently testified before one of the grand juries, according to people familiar with their appearances.
Here’s one way to gauge what this might mean: What could such a federal investigation learn from Cipollone that the Jan. 6 committee could not learn?
Cipollone did testify before the committee, and it was explosive. Cipollone condemned a plan floated by Trump allies to seize voting machines. I have testified that in pressing former vice president Mike Pence to subvert the electoral count, Trump was pursuing a scheme that was potentially illegal.
Cipollone also testified that Trump didn’t bother calling law enforcement or national security officials while the mob sacked the Capitol on Jan. 6. Cipollone disclosed that he’d demanded an immediate effort to call off the rioters. And he condemned Trump’s tweet directing the mob’s fury at Pence when it was already rampaging and Pence’s security detail feared for their lives.
So Cipollone could testify to a grand jury about all that. But Cipollone also repeatedly invoked executive privilege to avoid disclosing direct conversations with Trump himself.
For instance, Cipollone refused to disclose communications with Trump about the need to call off the rioters. And he wouldn’t testify to direct knowledge of conversations about the mob’s “hang Mike Pence” chants and Trump’s alleged conviction that Pence “deserved” this.
Yet a Justice Department investigation would likely be able to prevail on Cipollone to disclose those communications, says New York University law professor Ryan Goodman, who closely tracks the Jan. 6 saga at Just Security along with co-author Justin Hendrix.
“Cipollone obviously thought many of Trump’s schemes were illegal or risked criminal liability,” Goodman told me. “The Justice Department can get from Cipollone what he told Trump directly and how Trump responded. That is likely to be damning evidence.”
This could further establish the degree to which Trump acted with corrupt intent. That’s essential to showing Trump broke laws, such as obstruction of an official proceeding (the electoral count) or conspiracy to defraud the United States (by conspiring to subvert that count).
Cipollone perhaps can testify to just how extensively Trump was informed that his schemes might be illegal. That could disarm Trump’s inevitable claim that he merely listened to his lawyers Rudy Giuliani and John Eastman.
“That’s where Cipollone can come in to show how Trump was told various schemes were patently illegal,” Goodman said.
Former federal prosecutor Harry Litman adds that prosecutors would not be hampered by Cipollone’s invocations of executive privilege.
The Justice Department “will insist there is no shield to his testimony, and if necessary will go to court to force his hand,” Litman told me, noting that Cipollone could help establish “Trump’s knowledge that his conduct was illegal based on his own conversations with the president.”
Again, we don’t know if this is what the Justice Department is investigating. But as trial lawyer David Lurie told me, at a minimum, all this strongly suggests “the investigation is focused on the president’s circle, and very likely the president.”
All this also illustrates an underappreciated way the Jan. 6 hearings might be having a positive public impact.
As political scientist Jonathan Bernstein argues, the hearings have effectively driven home journalists, civil society and even some GOP elites that Trump and his allies arrayed themselves in direct, hostile opposition to democracy and the rule of law. That makes it harder for Trump propagandists to cast efforts at accountability as mere partisan showdowns between equivalently motivated political parties.
Similarly, the hearings have drawn a road map for the public — and those elites — illustrating the specifics of the depraved and venal wrongdoing committed by Trump and his allies. If we do learn of a criminal investigation into Trump, all this public knowledge will make it harder to dismiss it all as a witch hunt pursued by Democrats and the “deep state,” as we all know he will do.