These developments, the clearest indication yet that Trump is in the crosshairs of the investigation, suggest the effort to find the truth will survive even if Republicans win the House this fall and shut down the select committee. Unlike the House investigation, the Justice Department will be able to bring criminal charges against former Trump administration officials if it chooses.
As such, the department is seeking to assert executive privilege that Trump is likely to do in an attempt to thwart the investigation. It also suggests that the department, after months of complaints from select House members and others that it did not act quickly enough, is moving with shrewdness.
Both Cipollone and Philbin were subpoenaed, sources familiar with the matter told CNN. Both were close to Trump inside the White House in the difficult days after the 2020 election and in the run-up to the rebellion on Capitol Hill. The department sought his testimony after the grand jury also heard from two key members of former Vice President Mike Pence’s mastermind, his former chief of staff Mark Short and legal counsel Greg Jacobs.
Cipollone has also been a key figure in televised House committee hearings, which have used him to highlight the potential illegality of Trump’s actions and refusal to intervene to quell the Capitol uprising. The committee’s lead, Cassidy Hutchinson, an aide to former White House chief of staff Mark Meadows, testified that Cipollone warned that the staff could be charged with countless crimes if they let Trump into the Capitol on Jan. 6.
In his own testimony before the committee, Cipollone declined to disclose details of his private conversations with the then-President for reasons of privilege. But with its longer timeline and resources, the Justice Department may have more leverage to overcome that hurdle, either in negotiations with Cipollone or through the courts.
Trump may be the focus of investigators
Until it was revealed that Cipollone and Philbin, both of Pence’s top aides, were wanted for grand jury testimony, it was not possible to ascertain whether the department was directly looking into the former President’s role in disrupting the peaceful transfer of power. But given the closeness of the two White House advisers, in particular, to the then-President, the line of inquiry now seems much clearer.
“You don’t call the White House counsel, the deputy White House counsel, especially after the testimony they gave to the 6/1 committee, unless you’re looking clearly and directly at Donald Trump,” Preet Bharara. former U.S. attorney for the Southern District of New York, told CNN’s Jake Tapper on “The Lead” on Wednesday.
Cipollone and Philbin could give investigators insight into Trump’s statements, actions and state of mind on one of the most dangerous days in American history. This could be important in determining whether he had a corrupt intent to break the law. Cipollone’s testimony could also be threatening to Trump if restrictions on executive privilege are lifted, as he has a reputation for integrity and truthfulness.
Among other revelations, Cipollone told the House select committee in closed-door videotaped testimony that he believed Trump should have conceded the election and that Pence deserved the Presidential Medal of Freedom for not helping to overturn the congressional election.
A legal battle is brewing
Any appearance by Cipollone, however, would likely have to await a court battle over executive privilege, which allows the president to receive private advice on key issues and cases and expect to be shielded from congressional investigations under the doctrine of separation of powers.
CNN’s Pamela Brown reported Tuesday that Cipollone and his lawyers were talking to Justice Department officials about a grand jury appearance and how to deal with executive privilege issues. Trump has repeatedly made sweeping claims for executive privilege that extend to advisers and communications far beyond conventional understandings of its scope — and he is likely to do so again.
Possibly, a legal battle over Cipollone’s testimony could go all the way to the Supreme Court. During the Watergate scandal, then-President Richard Nixon claimed executive privilege to try to prevent the release of incriminating tapes. But in a ruling that could be important to Trump’s case, the Supreme Court said executive privilege could not be used to obstruct the administration of criminal justice. Additionally, the courts don’t have a long history of ruling on how far a former President can go with executive privilege, so any legal battle between Trump and the Justice Department could cover significant new territory.
The Jan. 6 House committee did not raise the issue of Cipollone’s reluctance to talk about certain conversations with Trump. It is racing against time as it is likely to be dismantled by pro-Trump Republicans in the House if control of the chamber changes after November’s midterm elections. But the Justice Department has the luxury of more time to wage a legal battle.
“I’m optimistic that the Justice Department can win this,” former federal prosecutor Sun Wu said on CNN’s “The Situation Room” on Wednesday, warning, however, that it could take months for a legal process to be resolved.
That means a Justice Department investigation could continue well into the next year at least. So even if the congressional investigation ends, there will be at least one place where Trump could face the blame.
That possibility of a prolonged investigation is one reason many observers believe Trump is leaning toward an early announcement of a presidential campaign in 2024. That would make it easier for the former President to argue that the investigation is a politicized attempt by the Biden administration to weaponize the Justice Department for to try to prevent him from regaining the White House.
However, investigative evidence does not mean proof of guilt. While the revelations of the televised House hearings were shocking and showed greater involvement of the former President in the Jan. 6 coup attempt than previously known, Attorney General Merrick Garland would still face a deep dilemma in deciding whether to prosecute to the former -President.
The House committee hearings have painted a damning picture, but they have also gleaned from depositions and available evidence and have not included cross-examination that could poke holes in witness testimony.
A criminal case requires a higher standard of proof than a congressional investigation. The seriousness of prosecuting a former President suggests that Garland should be particularly convinced of the conviction. A criminal case against Trump would also raise the question of whether such a process, which could shake the United States to its core and set precedents for future former Presidents, is really in the national interest, however much the data.
Conversely, establishing a principle whereby a President could avoid legal responsibility for attempting to overturn an election could be equally destructive to America’s democratic system and liberties.
In a sense, the January 6 committee and its success in going deep into the former President’s West Wing and uncovering the scheme to steal the election may facilitate Garland’s decision-making process. While Trump is sure to be a political victim if indicted, the mounting evidence — including harrowing testimony and graphic video of his mob attack on Capitol Hill — serves to prime the public and shape their perceptions of what really happened. it happened This may marginally mitigate accusations that any prosecution of the former President is a purely political exercise.
Even so, every day that signs point closer to a possible indictment against Trump — or a controversial decision not to prosecute him — is a step closer to what would inevitably be a period of extraordinary national trauma.
Pamela Brown, Katelyn Polantz and Jeremy Herb contributed to this story.