U.S.

Justice subpoenas of Trump counsel mark turning point 

Justice subpoenas of Trump counsel mark turning point 

The Justice Department’s grand jury subpoenas against former White House attorney Pat Cipollone and others in former President Trump’s inner circle mark a turning point in the federal law enforcement investigation into the former president.

The grand jury inquiry has significantly more power than the House select committee of Jan. 6 to thwart any claims of executive privilege the former president might raise — an issue that has come up with Cipollone.

When Cipollone agreed to testify to the Jan. 6 panel, he declined to answer certain questions about his conversations with Trump, citing attorney-client privilege and executive privileges.

Experts say these claims of privilege are unlikely to stand up in court if Trump or Cipollone tried to use them to withhold information from a grand jury.

“The Justice Department 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 represented former President Clinton in a dispute. about a large-scale White House lawyer. jury testimony.

“In my opinion, it would be inconceivable that the Justice Department would not win,” Eggleston added.

Cipollone’s insights on Jan. 6 are likely to be of great interest to prosecutors after his emergence as a key figure in the Congressional investigation.

The select committee has presented evidence that the former top White House attorney expressed concern about Trump’s behavior in the weeks leading up to the January 6, 2021 Capitol attack.

Cassidy Hutchinson, a Trump White House aide, testified in June that Cipollone had issued stark warnings in the days leading up to Jan. 6 when it became clear Trump wanted to lead his supporters in a march to the Capitol to protest the certification of his election by Congress. loss to President Biden.

“Please make sure we don’t go to the Capitol, Cassidy,” Cipollone told Hutchinson, according to her testimony. “We will be charged with every crime imaginable if we make that move possible.”

While lawmakers on select committees had little recourse when Cipollone and others declined to answer questions about their talks with Trump, legal experts say federal prosecutors have more tools at their disposal and that any allegation of executive privilege in a grand jury context will carry a heavy burden. would be a struggle in the courts.

ABC News reported Tuesday that a federal grand jury had subpoenaed Cipollone, making him the top Trump White House official targeted by the DOJ’s escalating investigation on Jan. 6.

The select committee has fought in more than a dozen civil lawsuits over the past year to enforce their investigative demands through the courts. While the panel has had some success, things can drag on for months.

In cases where a target of a congressional subpoena refuses to comply, the House also has the option to refer a criminal contempt to the Justice Department for prosecution, which lawmakers have done with four of Trump’s closest allies.

But prosecutors ultimately charged only two of them — Steve Bannon and former White House trade adviser Peter Navarro — with criminal contempt for Congress, and neither of them seem closer to working with the commission. A jury last month convicted Bannon on two counts of contempt, each carrying a possible jail term of 30 days to a year.

The Justice Department declined to charge two other Trump associates who were held in contempt, social media guru Dan Scavino and former White House chief of staff Mark Meadows.

Meadows filed a civil lawsuit against the commission late last year, challenging the subpoena and claiming to be protected by testimony immunity for White House advisers. The case has been in court for eight months and it is unclear when it can be resolved.

While the Supreme Court has said former presidents have some authority to enforce administrative law, some legal scholars say such a claim has little chance of shielding information sought in a criminal investigation.

Jonathan David Shaub, a law professor at the University of Kentucky and a former attorney with the Justice Department’s Office of Legal Counsel, said he believes any claims of Trump or Cipollone’s privilege to the grand jury are “frivolous” and federal prosecutors can act quickly to enforce compliance.

The Department of Justice (DOJ) “has a much more effective and faster enforcement mechanism to go to court and have these claims of privilege tried and almost certainly dismissed,” Shaub said.

“I suspect his claims to privilege are so tenuous that we won’t hear much more, that he will negotiate and eventually get the best of him from DOJ and then obey, because he doesn’t have much of a leg to stand on.” stand,” he added.

When courts review subpoena privilege claims, the main question judges try to answer is whether the need for the information is compelling enough to outweigh the need for executive confidentiality.

In 1974, the Supreme Court unanimously sided with Watergate’s special counsel when then-President Nixon attempted to quash a grand jury subpoena for White House tape recordings.

Chief Justice Warren Burger wrote in the decision, “The general assertion of privilege must give way to the demonstrated, specific need for evidence in a pending criminal trial.”

In a more recent case, the Supreme Court rejected Trump’s offer to block the select committee from obtaining a large amount of documents from his time in the White House. In an 8-1 ruling in January, the judges declined to review a lower court’s decision that the select committee’s need for the documents would outweigh any claim of privilege, even if Trump was still in office at the time.

Eggleston said he believes the courts would rule in the same way if a dispute over privilege emerged from the grand jury investigation.

“I think that’s probably also the way the courts will think about this,” he said. “Because if you’re just applying a standard balancing test under US v. Nixon, I think it’s overwhelming that the Justice Department at this stage has shown a compelling need for this testimony and President Trump’s interest in confidentiality, especially after the January 6 hearings. , is virtually zero.”