The grand jury investigation has far more power than the Jan. 6 House select committee to wade through any claims of executive privilege the former president might raise — an issue that arose with Cipollone. When Cipollone agreed to testify at the Jan. 6 panel, he declined to answer some questions about his conversations with Trump, citing attorney-client and executive privilege. Experts say those privilege claims are unlikely to be upheld in court if Trump or Cipollone tried to use them to withhold information from a grand jury. “A 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 over senior White House lawyer. jury testimony. “In my view, it would be unthinkable for the Justice Department not to win,” Eggleston added. Cipollone’s knowledge of Jan. 6 is likely to be of great interest to prosecutors after he emerged as a key figure in the congressional investigation. The select committee presented evidence that the former top White House lawyer raised concerns about Trump’s behavior in the weeks leading up to the Jan. 6, 2021, attack on Capitol Hill. Cassidy Hutchinson, a Trump White House aide, testified in June that Cipollone issued stark warnings in the days leading up to Jan. 6, when it became clear that Trump wanted to lead supporters on a march on Capitol Hill to protest the certification of his election by Congress a loss for President Biden. “Make sure we don’t go up to the Capitol, Cassidy,” Cipollone told Hutchinson, according to her testimony. “We will be accused of every crime imaginable if we make this movement happen.” While select committee lawmakers had little recourse when Cipollone and others refused to answer questions about their conversations with Trump, legal experts say federal prosecutors have more tools at their disposal and any assertion of executive privilege under heightened criticism. committee will face an uphill battle in court. ABC News reported Tuesday that a federal grand jury subpoenaed Cipollone, making him the highest-ranking Trump White House official targeted in the escalating DOJ investigation on Jan. 6. The select committee has fought to enforce its investigative requests through the courts in more than a dozen civil lawsuits over the past year. While the panel has had some success, cases can drag on for months. In cases where a congressional subpoena target refuses to comply, the House also has the option of referring criminal contempt to the Justice Department for prosecution, which lawmakers have done with four close Trump allies. But prosecutors ended up charging only two of them — Steve Bannon and former White House trade adviser Peter Navarro — with criminal contempt of Congress, and neither appears to be any closer to cooperating with the committee. A jury convicted Bannon last month of two counts of misdemeanor contempt, each of which carries a potential prison sentence of between 30 days and a year. The Justice Department declined to file charges against two other Trump aides held in contempt, social media guru Dan Scavino and former White House Chief of Staff Mark Meadows. Meadows filed a civil suit against the commission late last year, challenging its subpoena and claiming he was protected by immunity for White House advisers. The case has been tied up in court for eight months and it is unclear when it might be resolved. While the Supreme Court has said former presidents have some authority to claim executive privilege, some legal scholars say such a claim would have little chance of protecting information sought in a criminal investigation. Jonathan David Schaub, a law professor at the University of Kentucky and a former attorney in the Justice Department’s Office of Legal Counsel, said he believed any privilege claim by Trump or Cipollone before the grand jury would be “frivolous” and federal prosecutors would can move quickly to enforce compliance. The Department of Justice (DOJ) “has a much more efficient and speedy enforcement mechanism to go to district court and adjudicate these privilege claims and almost certainly get them dismissed,” Shaub said. “My guess is given how weak his claims of privilege are that we’re not going to hear much more, that he’s going to negotiate and eventually get the best he can from the DOJ and then comply because he doesn’t have much of a leg up to stand,” he added. When courts evaluate claims of subpoena privilege, the primary question judges seek 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 the Watergate special counsel when then-President Nixon tried to quash a grand jury subpoena for White House tape recordings. Chief Justice Warren Burger wrote in the decision, “The blanket assertion of the privilege must yield to the demonstrated, special need for evidence in a pending criminal trial.” Former Army officers urge Supreme Court to uphold affirmative action Minnesota colleges rules pharmacist who denied woman morning-after pill did not violate her rights In a more recent case, the Supreme Court rejected Trump’s attempt to block the select committee from obtaining a trove of documents from his time in the White House. In an 8-1 ruling in January, the justices declined to review a lower court’s ruling 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 courts would rule the same way if a dispute over privilege arose from the grand jury investigation. “I think that’s probably the way the courts will think about it as well,” he said. “Because if you just apply a standard balancing test in the context of USA v. Nixon, I think it’s overwhelming that the Justice Department would have shown a compelling need for this testimony and President Trump’s interest in confidentiality at this stage, particularly after the Jan. 6 hearings, it’s essentially zero.”
