The Justice Department’s issuance of a grand-jury subpoena to former White House counsel Pat Cipollone signals that the criminal investigation of former President Trump is ramping up.
Last month, we’ll recall, Cipollone agreed to sit for an interview with the House January 6 committee. It is important to understand: That was a heavily negotiated appearance in which conditions laid out by Cipollone had to be accommodated. Under Justice Department guidance that has long been followed by administrations of both parties, the president’s top advisers claim absolute immunity from compliance with congressional subpoenas. Moreover, as the lawyer for the president, the White House counsel is obliged by attorney–client privilege (ACP) to maintain the confidentiality of communications with the president and White House staff. (The White House counsel represents the president in his official capacity as president, so the scope of the ACP that applies to their communications is not the same as the scope of the ACP that applies to the president’s communications with his private lawyer.)
The theory of executive immunity from congressional information demands is rooted in the Constitution’s separation-of-powers principles. Ordinarily, the immunity is aggressively defended by the Justice Department, an important executive-branch component. So it is notable that DOJ has substantially refrained from defending executive privilege in connection with the House January 6 committee’s investigation. (This is because President Biden, the incumbent, has not supported his predecessor’s attempts to invoke executive privilege in the committee’s investigation.)
Obviously, though, a current or former executive-branch official’s constitutionally based immunity from congressional inquiries does not extend to inquiries undertaken by the executive branch itself.
The Justice Department is conducting a criminalinvestigation with an eye toward prosecuting penal offenses, not a legislative inquiry with an eye toward potentially enacting curative laws. Going back to the Watergate era, the Supreme Court and the lower courts have reasoned that there is a higher public interest at stake in criminal investigations of public officials than in congressional inquiries. While the mere existence of a criminal investigation does not eviscerate executive privilege, the privilege must yield if prosecutors demonstrate that they have a specific need for important evidence, and that that evidence is not reasonably available from other sources. Ergo, unless prosecutors had concluded Cipollone possessed information vital to possible criminal charges, they would not have subpoenaed him to appear before the grand jury.
Here, significantly, the Justice Department itself has issued the subpoena to the former White House counsel. Virtually all criminal investigations in which executive-privilege claims have arisen have been conducted by specially appointed prosecutors: Watergate-era “special prosecutors,” the “independent counsels” appointed under a now-defunct statute, or “special counsels” named under currently applicable federal regulations.