DOJ’s Investigation Accelerates: Pat Cipollone’s Possible Testimony Could Seal Trump’s Fate

Many pundits and legal analysts, including those at this site, have pointed to the weeks after the mid-term elections as the targeted time during which any indictments against Trump or his inner circle would likely be filed. Only DOJ knows what’s to come, but the Department’s recent activity and aggressive pace are consistent with the timeline and plans noted above. Now, DOJ wants to pierce former White House Counsel Pat Cipollone and deputy White House Counsel Patrick Philbin’s claims to attorney-client privilege (and-or executive privilege) regarding their discussions with Trump, in a move that CNN reporter  Katelyn Polantz has said, if it’s successful, “that’s the ballgame.” From CNN:

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The Justice Department is asking a federal judge to force the top two lawyers from Donald Trump’s White House counsel’s office to testify about their conversations with the former President as it tries to break through the privilege firewall Trump has used to avoid scrutiny of his actions on January 6, 2021, according to three people familiar with the investigation.

The move to compel additional testimony from former White House counsel Pat Cipollone and deputy White House counsel Patrick Philbin just last week is part of a set of secret court proceedings. Trump has been fighting to keep former advisers from testifying before a criminal grand jury about certain conversations, citing executive and attorney-client privileges to keep information confidential or slow down criminal investigators.

The fact that the hearings were kept secret (at least last week) is truly a testament to their importance both as a court proceeding and to keep third parties unaware. Recently, we have seen John Eastman’s claim to attorney-client privilege overridden by the “crime exception,” whereby the privilege doesn’t apply if the conversations involve plotting a crime. The evidentiary decision isn’t definitive as to whether Trump committed a crime, it was just likely enough for the judge in that matter. Piercing Cipollone and Philibin’s discussions wouldn’t fall under the same exception, it could fall under an exception where an attorney gives a client advice on how to avoid committing a crime, and the client commits the crime anyway. Hence the “that’s the whole ballgame” summary.

The attempt follows on the heels of the first successful piercing of the executive privilege with respect to Mike Pence’s staff, in which Marc Short and Greg Jacob testified.

Jacob’s testimony on October 6, which has not been previously reported, is the first identifiable time when the confidentiality Trump had tried to maintain around the West Wing after the 2020 election has been pierced in the criminal probe following a court battle. A week after Jacob spoke to the grand jury again, Short had his own grand jury appearance date, CNN reported.

It really is almost impossible to get closer to Trump and possible incriminating statements – answers which go to “intent” to commit a crime, than deposing Pat Cipollone in front of a grand jury. Cipollone has knowledge of Trump’s intentions on January 6th and the Florida files. So, if Cipollone finds himself in front of the grand jury… Ball game… if it happens. They aren’t there yet, but as said up top, this is what one would expect to see a month out from possible filings.

Jason Miciak

@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact with any concerns.