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In what could turn into a major escalation over points, Parliament Selection Committee An investigation into the January 6 riots has issued a subpoena to former White House counsel Pat Cipollone. Many of Cipollone’s positions and statements have already been recorded as part of the record through documents and witnesses. However, the J6 committee wants to compel him to testify directly. If Cipollone continues to resist testifying, that could trigger a grand jury.

Cipollone has been rightly praised for his efforts to deal with the 2020 election certification challenge, shielding the Justice Department from pressure from the president, and his efforts to get former President Donald Trump to publicly call for an end to the insurgency.

Admittedly, I am a Madisonian scholar who tends to favor Congress in such conflicts. I have testified for years in favor of Congress’s authority to subpoena testimony, including in impeachment proceedings against Trump. I have said before that privilege challenges to the House inquiry will and must fail. they did.

However, this is the farthest Congress has pushed that inherent power. Cipollone is the core of privileges that protect presidents in their communications with close aides. As I have It has already been discussedThere is considerable ambiguity in this field.

The Supreme Court found the basis of this privilege in United States v. Nixon And it has been used extensively to deny information to Congress and the courts in previous disputes. The Supreme Court considers the privilege to be “appropriate” and the strongest claim arises when the president can show that disclosure would impair national security or the functioning of the executive branch.

In 1974, the US Supreme Court ruled against Nixon and ordered the special prosecutor to release the Watergate tapes. Leon Jaworski – And finally to Congress. Nixon resigned almost two weeks later. This case has given rise to various interpretations of the denial of executive privilege, including what I call the “Nixon fallacy.” The fallacy goes something like this: Impeachment has so far surpassed the claim of executive privilege that the Supreme Court has already held that a criminal investigation or impeachment takes precedence over privilege, so any withholding of testimony or documents is per se barred.

In fact, the Supreme Court has never said anything like that. Yes, the court rejected what it described as a claim of “absolute and unqualified presidential immunity” to withhold relevant evidence in a criminal investigation. But he did not say that the president cannot privilege testimony in impeachment proceedings or that such privileged statements can never prevail. Indeed, it did not even categorically deny such allegations in the criminal investigation, saying only that “without further justification” by Nixon, the tapes should be turned over to the Watergate special counsel.

Don McGahn was a White House adviser He had already been ordered to testify, although that case was based on strong immunity arguments. This arrangement was later reversed by the DC circuit. In the messy legal battle that followed, that demand was eventually dropped.

Supreme Court this year Rejected a move by Trump to prevent the transfer of White House materials to the National Archives after a Comment DC circuit denied the allegations. While the court did not say that the former president could not make such claims, this is one of the issues that are still at stake in these conflicts. The court declared:

Because the appeals court concluded that President Trump’s claims would have failed even if he had been the current president, his status as a former president was not necessarily any different from the court’s decision. Therefore, any discussion before the Court of Appeals regarding President Trump’s status as a former president should be treated as a non-binding ruling.

This potential conflict reveals the core of the privilege in having a close aide provide confidential legal advice to a sitting president.

The question is why fight this fight at this time. The committee has already made a lot of history of Cipollone’s position. As someone who has been an MP in litigation before, I think the committee risks setting a potentially bad precedent for the House by endorsing Cipollone to the extent that it is on the docket. In litigation, congressional lawyers tend to follow the Hippocratic oath to “first do no harm.” This principle has led both houses to historically avoid litigating these questions as much as possible.

Now we’ll have to wait to see if Cipollone goes to court to challenge the effort.

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