Marc Short, former Vice President Mike Pence’s chief of Staff, just testified before a federal grand jury. So did his lawyer, Greg Jacob. No one knows exactly what either said since the grand jury is a secret proceeding. But how about former White House Counsel Pat Cipollone?
If I were Attorney General Merrick Garland, I would have started with Cipollone. Cipollone succeeded Don McGahn in 2018 to assume the prestigious White House post. It was tough being White House counsel in the Trump administration. The White House counsel serves the public, not the president, and this clash of two regimes might make for trouble. McGahn refused Trump’s order to fire special counsel Robert Mueller.
McGahn said he felt “perturbed” and “trapped” by former President Trump, and subsequently resigned. Cipollone might have refused to testify at all to Congress, but later made a deal with the committee that he would give testimony not covered by executive privilege. This means he refused to testify about conversations with Trump in those anxious moments on Jan. 6.
The committee worked out a deal with Cipollone that he would spill the beans about everything except his communications with Trump. So, the committee got the apple of the story without the core. Every time committee questioning took a hard turn, Cipollone looked at his lawyer with pursed lips and a wry grimace, as though someone had just removed a molar. Then, he claimed privilege and danced around the question. What was he hiding? No lawyer wants to paint a target on his client’s back, but this is different.
Executive privilege shields presidential advisers from disclosing their communications with a sitting president on matters of state, not whether to call off an armed insurrection. The privilege is not personal, but governmental. Legal experts have said there is a serious question as to whether a former president has an executive privilege, especially if Trump was engaged in criminal acts or in dereliction of his constitutional duty as chief executive to “take care that the laws be faithfully executed.”
A federal judge has already held in another case that “more likely than not” Trump engaged in criminal acts on Jan. 6. You can’t sit down with your lawyer who implores you to call off the mob and say to him in confidence “not yet, Pat, I need them to keep it up so we can delay the counting of the electoral college vote.”
Suppose Trump told Cipollone, “let’s hold off on sending the mob home. This is my last chance to steal the election. My plan is to throw out the vote in the close states and move the decision into the House of Representatives, where I have the advantage.” That would clearly not be privileged. There is a longstanding principle that the public is entitled to every man’s evidence.
Garland has more cards to play with Cipollone than does the committee. He can put him in the grand jury, obtain court rulings on questions of privilege, give him immunity from prosecution and get the whole story. These are the traditional tools of the prosecutor. Does Garland seriously believe that this step would not be good for the country or turn us into a banana republic?
No one knows what Trump’s true motivation was in those 187 minutes better than Cipollone. No one knows better whom Trump called, whether he used a burner phone, what he said to them and, to use Watergate-ese, “what the President knew, and when he knew it.”
Our Hamlet of an attorney general better act fast. Trump may announce for president very soon, and this could change the political position. The midterms are approaching, and his actions may be perceived as an effort to influence the outcome of the election. “Justice delayed is justice denied,” the old maxim goes. The time is approaching when Garland must get on with it.
Garland has tools at his disposal that Congress lacks. Former Trump adviser Steve Bannon may go to jail for criminal contempt of Congress. The maximum sentence is one year and a fine on each of the two counts where he stands convicted.
Former Trump aide Peter Navarro may suffer the same fate. Garland could decide to give them leniency in exchange for their testimony, but a year in jail is not a lot of leverage. Or he could give all or some of them, including Cipollone, immunity. Then, they would have to give evidence before the grand jury.
Come on, Merrick Garland. Steve Bannon was convicted of contempt of Congress. There’s been no rioting in the streets; no civil war; no suggestion that the country is being torn apart.vGarland emphatically said just the other day that “No person is above the law in this country. I can’t say it any more clearly than that. There is nothing in the principles of prosecution and any other factors which prevent us from investigating anyone – anyone – who is criminally responsible for an attempt to undo a democratic election.”
A good declaration of pious intent, but where’s the beef? So far, there is no indication that any of the committee witnesses, who were not part of the mob that stormed the Capitol, have been brought before a federal grand jury. None of the Trump team, not Mark Meadows, Rudolph Giuliani, Roger Stone or Bannon. None who were in on the planning, the incitement, the financing, the call to action or in the know about the infamous 187 minutes in the White House dining room.
But let’s get on with it, and get the facts, Mr. Attorney General. Pat Cipollone may well have the key to the safe.
James D. Zirin is a former federal prosecutor in the Southern District of New York.