The Nervous Lawyer in the Room: Why Pat Cipollone’s Testimony Matters So Much

Photo: Patrick Semansky / AP

When Cassidy Hutchinson sat before national cameras for her public testimony, one of the most explosive things she recalled was a conversation she had with Pat Cipollone, who was then White House counsel to the former president. Hutchinson told more than 13 million viewers, including a handful of key investigators and federal prosecutors, that on January 6, 2021, Cipollone had objected strenuously to the idea that Trump join the mob, which was gathering at the Capitol to help overturn the results of the election. “We’re going to get charged with every crime imaginable,” Hutchinson testified she recalled Cipollone saying to her.

Cipollone had strong reasons to suspect Trump’s motives and thirst to stay in power, having witnessed first-hand the former president in action over the preceding weeks. Cipollone was among those who stopped Trump from replacing acting Attorney General with Jeffrey Clark, a stooge and election truther introduced to Trump by Rep. Scott Perry (R-PA). Clark had proposed sending a letter to Georgia state lawmakers falsely claiming fraud in the election—a move that Cipollone referred to as a "murder-suicide pact," according to former Justice Department official Steven Engel, who was in a meeting with Cipollone and Trump where the former president indicated he was prepared to fire Rosen and install Clark. Trump believed that Clark would pursue the baseless claims of election fraud where Rosen had refused. Only a threat of mass resignations from the Department stayed Trump’s hand.

Hutchinson also testified that she heard lawyers from the Cipollone’s office condemn a plan to put forward fake Trump electors in the swing states won by Biden as not “legally sound.” This underscores the damning fact that everyone around the former president, including his own White House counsel, was telling him that the Eastman coup plan lacked legal merit. Trump campaign aide Jason Miller testified that Cipollone even openly confronted coup-planner John Eastman over his wild theory that Vice President Mike Pence could unilaterally stop the electoral count. Cipollone said that the idea was “crazy” according to Miller. As Jared Kushner has testified, Cipollone threatened repeatedly to resign if Trump moved forward with some of the more extreme proposals. (Kushner dismissed the threats as “whining” at the time.)

The Committee clearly believes that, if given the opportunity, Cipollone will bolster its narrative. After all, Cipollone was a witness in the room who sought repeatedly to keep the train from derailing. “Our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump's plans for January 6th," Committee Vice Chair Liz Cheney said during a June hearing.

Small wonder why the January 6 Committee is so eager to finally put Cipollone on the record. “Our committee is certain that Donald Trump does not want Mr. Cipollone to testify here,” said Cheney. “But we think the American people deserve to hear from Mr. Cipollone personally.”

Now, after many months of public calls from the January 6 Committee and further negotiations with Cipollone’s counsel, the Committee apparently will get its wish, at least behind closed doors. Cipollone has agreed to sit down next week for a videotaped, transcribed interview with the Committee. Prior to this, Cipollone had only given a private interview, off the record, with his testimony severely limited to avoid violating attorney-client privilege, meaning any communications between himself and the former president. What more Cipollone and his lawyers have agreed to speak about remains unknown.

Many wonder whether Cipollone is merely playing the Committee for time, as others like Ginny Thomas did, or will show up only to plead the Fifth Amendment, as others like Jeffrey Clark, John Eastman and Mike Flynn did. Or perhaps Cipollone will simply refuse to answer questions based on claims of attorney-client and executive privilege, effectively wasting the Committee’s time. While these outcomes indeed pose a risk, it appears it is one the Committee is prepared to take. 

After all, if Cipollone truly wanted to create delay, he would simply defy the subpoena like Peter Navarro and eventually Mark Meadows and Dan Scavino did. But unlike these witnesses, Cipollone has strong reason to believe his own hands are clean when it comes to federal charges. And he knows that the Committee has already secured the testimony of other key White House lawyers including Bill Barr, Jeffrey Rosen, Richard Donoghue, Steve Engel and Eric Hershmann, all of whom provided some kind of legal counsel to the former president but nevertheless went on record regarding many of their communications with him. 

Further, given Cipollone’s prior efforts to oppose the most extreme plans of the White House, it would be very surprising if he were to choose, especially at this late hour, to align himself with the former president now that so much else already has come out. Moreover, he is keenly aware of the failed efforts of other lawyers such as John Eastman to shield his communications and memos from production. That court battle resulted in a disastrous finding by a federal judge that Eastman likely committed at least two federal crimes and therefore, under the crime-fraud exception to the attorney-client privilege rule, his communications and memos had to be turned over to the Committee. Cipollone would be foolish to attempt the same here.

Then there are practical concerns. As former White House counsel to President Obama W. Neil Eggleston observed in an opinion piece, Cipollone is now in private practice, and it is unlikely that he would want his reputation permanently sullied by a refusal to cooperate with the Committee given what Hutchinson, Engels and others have already said. Rather, this is Cipollone’s opportunity to clear himself on the record with respect to his opposition to the coup plans and, should he choose it, to throw Trump and his co-conspirators under the bus by confirming the testimony of Hutchinson, Engels and others.

What Cipollone does and says won’t be known immediately, but we can be sure that if it’s helpful to the Committee and harmful to the former president’s case, the public will learn of it not long after his testimony.