by Laurence Tribe, Constitutional Law Professor, Harvard Law School
CNN
Oct 26, 2022
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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. This comes as the DOJ 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.
Transcript
[ERIN BURNETT] TONIGHT, A CNN EXCLUSIVE. THE JUSTICE DEPARTMENT NOW ASKING A FEDERAL JUDGE TO FORCE TWO TOP LAWYERS FROM DONALD TRUMP'S WHITE HOUSE TO TESTIFY ABOUT CONVERSATIONS WITH HIM. THOSE LAWYERS ARE FORMER WHITE HOUSE COUNSEL PAT CIPOLLONE, AND PATRICK PHILBIN. TRUMP WAGED A SECRET COURT FIGHT TO BLOCK FORMER ADVISERS FROM TESTIFYING BEFORE A FEDERAL GRAND JURY INVESTIGATING THE EVENTS OF JANUARY 6th. OUR SENIOR JUSTICE CORRESPONDENT, EVAN PEREZ, IS OUT FRONT. EVAN, THIS COULD, I THINK, HAVE A MAJOR IMPACT ON THE INVESTIGATION IF THE JUSTICE DEPARTMENT SUCCEEDS, AND GETS THESE FORMER TRUMP LAWYERS TO TESTIFY, RIGHT?
[EVAN PEREZ] RIGHT. IT REALLY DOES HAVE THE POSSIBILITY OF GETTING PROSECUTORS INTO THE INNER CIRCLE OF DONALD TRUMP, AND HIS WHITE HOUSE. PAT CIPOLLONE WAS THE FORMER WHITE HOUSE COUNSEL. PATRICK PHILBIN WAS HIS DEPUTY. AND THEY WERE THERE DURING SOME OF THESE CONVERSATIONS AS THE FORMER PRESIDENT WAS TRYING TO IMPEDE THE TRANSFER OF POWER IN 2020, WHICH IS AFTER THE 2020 ELECTION. WHICH IS EXACTLY WHAT THE PROSECUTORS OF THE JUSTICE DEPARTMENT ARE INVESTIGATING. THE JUSTICE DEPARTMENT, SO FAR, HAS BEEN WINNING THESE SECRET PROCEEDINGS THAT ARE GOING ON AT THE COURTHOUSE HERE IN WASHINGTON. THEY GOT GREG JACOB, AND MARK SHORT, FORMER AIDES TO THE FORMER VICE PRESIDENT PENCE, TO COME BACK IN AND ANSWER QUESTIONS. THESE ARE VERY, VERY IMPORTANT QUESTIONS, ABOUT CONVERSATIONS THAT THEY HAD WITH THE FORMER PRESIDENT. SO, THE FACT THAT THEY'RE WINNING THESE FIGHTS DOES BODE WELL FOR THE JUSTICE DEPARTMENT AS THEY TRY TO GET THE COMPELLED TESTIMONY OF CIPOLLONE AND PHILBIN.
[ERIN BURNETT] EVAN, THANK YOU VERY MUCH. I WANT TO GO NOW TO THE CONSTITUTIONAL LAW PROFESSOR, AT HARVARD LAW SCHOOL, WHO ALSO CONSULTED HOUSE DEMOCRATS FOR THE IMPEACHMENT OF THEN PRESIDENT TRUMP. SO, PROFESSOR, WHAT DOES IT MEAN FOR DONALD TRUMP IF THE DOJ SUCCEEDS HERE, AND GETS IN THIS INNER CIRCLE, GETS PAT CIPOLLONE AND PAT PHILBIN'S TESTIMONY?
[LAURENCE TRIBE] IT MEANS HE'S IN DEEP TROUBLE. THERE'S NO REASON THE JUSTICE DEPARTMENT SHOULD NOT SUCCEED. WHEN A GRAND JURY DEMANDS THE TESTIMONY OF PEOPLE WHO HAVE FIRST-HAND KNOWLEDGE OF SOMEONE WHO APPEARS TO HAVE BEEN INVOLVED IN AN INSURRECTION AND A SEDITIOUS CONSPIRACY, THEY'RE ENTITLED TO GET THAT INFORMATION. IF THERE WERE AN EXECUTIVE PRIVILEGE FOR A FORMER PRESIDENT -- AND THAT'S DOUBTFUL -- IT WOULD BE OVERCOME BY THE CONTEXT: THE INFORMATION IS NEEDED FOR A CRIMINAL INVESTIGATION. IT WAS UNANIMOUS IN THE U.S. SUPREME COURT, IN BOTH CASES WHERE THE ISSUE AROSE, THAT THE NEED FOR INFORMATION IN A CRIMINAL PROCEEDING TRUMPS -- NO PUN INTENDED -- ANY EXECUTIVE PRIVILEGE. SO THERE IS NO BASIS FOR THEM TO RESIST THE ORDER THAT THEY'RE GOING TO GET FROM THE DEPARTMENT MOTION WITH THE COURT. AND THERE'S NO REASON FOR THE COURT TO DENY THAT MOTION.
[ERIN BURNETT] SO, OBVIOUSLY, THAT IS SIGNIFICANT. THERE IS ALSO WHAT'S GOING ON IN THE GRAND JURY INVESTIGATION IN GEORGIA. YOU'VE BEEN VERY CRITICAL OF SUPREME COURT JUSTICE CLARENCE THOMAS GIVING SENATOR LINDSEY GRAHAM A TEMPORARY FREEZE FROM TESTIFYING BEFORE THAT GRAND JURY IN GEORGIA. WHY DO YOU THINK THOMAS' DECISION -- WHICH, BY THE WAY, WENT AGAINST WHAT TWO OTHER COURTS ALREADY RULED, WHICH IS THAT GRAHAM SHOULD HAVE TO APPEAR BEFORE THAT GRAND JURY -- WHY DO YOU THINK THOMAS DOING THIS IS SO EGREGIOUS?
[LAURENCE TRIBE] IT'S EGREGIOUS BECAUSE IT'S ILLEGAL. IT WASN'T THE FACT THAT HE GRANTED LINDSEY'S REQUEST -- EVEN DENYING LINDSEY'S REQUEST WOULD'VE BEEN UNLAWFUL. BECAUSE 18 U.S. CODE -- ACTUALLY 28 U.S. CODE SECTION 455 -- SAYS THAT A JUSTICE OR JUDGE -- BUT IT INCLUDES A "JUSTICE" -- AND THE LANGUAGE IT USES IS "SHALL" DISQUALIFY HIMSELF IN ANY PROCEEDING IN WHICH HIS IMPARTIALITY MIGHT REASONABLY BE QUESTIONED. SO EVEN DENYING LINDSEY'S REQUEST WOULD'VE BEEN WRONG. HE SHOULD'VE JUST HANDED IT OVER TO ANOTHER JUSTICE. BUT THERE'S ANOTHER PART OF 28 U.S. CODE THAT IS SLAM DUNK APPLICABLE. IT SAYS THAT A JUSTICE "SHALL "-- AND I KEEP EMPHASIZING THE WORD "SHALL" -- IT'S NOT DISCRETIONARY -- DISQUALIFY HIMSELF. AND I'M GOING TO QUOTE THE LANGUAGE, IF "HIS SPOUSE IS KNOWN BY THE JUSTICE TO HAVE AN INTEREST THAT COULD BE SUBSTANTIALLY AFFECTED BY THE OUTCOME." NOW, WE KNOW THAT GINNI THOMAS HAS AN INTEREST. SHE MADE IT CLEAR. IT'S NOT EVEN SECRET. SHE WAS AT THE JANUARY 6th RALLY. SHE SENT AT LEAST 29 TEXTS A FEW WEEKS EARLIER TO THE CHIEF OF STAFF, MARK MEADOWS, URGING HIM TO BACK UP THE PRESIDENT'S EFFORT TO PREVENT THE TRANSFER OF POWER TO BIDEN. SHE SAID THE WHOLE BIDEN FAMILY SHOULD BE TRIED FOR TREASON. THEN THERE WERE TEXTS THAT SHE SENT TO THE LEGISLATORS OF ARIZONA AND WISCONSIN, URGING THEM TO SUBMIT PHONY ELECTORAL SLATES TO PREVENT THE TRANSFER OF POWER. SO SHE IS INTIMATELY INTERESTED IN THE OUTCOME OF THE PROCEEDING IN GEORGIA WHERE THE SAME QUESTION, THE QUESTION OF WHETHER FORMER PRESIDENT TRUMP, AND MEMBERS OF THE HOUSE AND SENATE, INCLUDING SENATOR GRAHAM, WERE ENGAGED IN AN EFFORT TO STRONG-ARM PEOPLE, LIKE RAFFENSPERGER, TO CREATE PHONY VOTES. SO SHE IS IN THE MIDDLE OF IT. HE HAS TO KNOW THAT. IT'S NOT A QUESTION OF PILLOW TALK. EVERYONE IN THE COUNTRY KNOWS IT. IT'S OPEN AND SHUT.
[ERIN BURNETT] WELL, AS YOU SAY, IT'S NOT DISCRETIONARY, IT'S "SHALL." AND THAT OPERATIVE WORD CARRIES SO MUCH WEIGHT IN THIS CASE. PROFESSOR, THANK YOU SO MUCH.