The strategy to strongly assert the president's executive privilege is being developed under newly arrived White House counsel Pat Cipollone, who has hired 17 lawyers in recent weeks to help in the effort.
WASHINGTON – A beefed-up White House legal team is gearing up to prevent President Donald Trump’s confidential discussions with top advisers from being disclosed to House Democratic investigators and from being revealed in the special counsel’s long-awaited report, setting the stage for a potential clash between the branches of government.
The strategy to strongly assert the president’s executive privilege on both fronts is being developed under newly arrived White House counsel Pat Cipollone, who has hired 17 lawyers in recent weeks to help in the effort.
He is coordinating with White House lawyer Emmet Flood, who is leading the response to special counsel Robert Mueller’s report on his 20-month investigation into Russian interference in the 2016 campaign. Flood is based in White House counsel’s office but reports directly to Trump.
Trump aides say White House lawyers are focused on preserving a legal protection routinely invoked by presidents of both major parties.
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But any effort to fight investigators is likely to further inflame Trump’s relationship with Democratic leaders and could lock the administration and Congress in protracted legal standoffs that may ultimately go to the Supreme Court.
Of particular concern to Democrats: whether the White House will seek to use executive privilege to keep private any portions of Mueller’s report that addresses alleged obstruction of justice by the president.
There is a growing sense that the special counsel’s closely held investigation could come to culmination soon. Some Trump advisers think Mueller could deliver the confidential report explaining his findings to senior Justice Department officials next month. Under the rules authorizing the special counsel, the attorney general can then decide whether to share the report or parts of it with Congress and the public.
Some House leaders have vowed to immediately seek to obtain a copy of Mueller’s findings. But the White House would resist the release of details describing confidential and sensitive communications between the president and his senior aides, Trump advisers say.
It is unclear whether the special counsel’s report will refer to material that the White House views as privileged communications obtained from interviews with senior White House officials. Some Trump advisers anticipate that Mueller may simply write a concise memo laying out his conclusions about the president’s actions.
However, Rudy Giuliani, one of Trump’s personal attorneys, said the president’s lawyers have made clear to Justice Department officials that they want to see Mueller’s completed report before the department decides what to share with Congress. Their aim: to have a chance to argue whether they believe some parts should remain private under executive privilege, Giuliani said.
“At that point, we can decide whether we have executive privilege exceptions to the report,” Giuliani said in an interview.
If the Justice Department agrees with the White House counsel that the report or portions of it should be withheld from the public, the House could try to subpoena the document, Giuliani said – but the White House could then go to court to resist its release.
The legal showdown could be one of the most significant debates over presidential executive privilege since President Richard Nixon sought to block the release of his White House tapes in the Watergate investigation.
Ronald Weich, an assistant attorney general under President Barack Obama, said the Mueller report will be of such “overwhelming interest” to Congress and to the public that it is highly likely the courts would rule in favor of Congress’ receiving it, as the Supreme Court did in ordering Nixon to turn over his tapes in July 1974. Nixon resigned the following month.
Further complicating the current dynamic is a possible change in Justice Department oversight of the special counsel probe, which Deputy Attorney General Rod J. Rosenstein has continued to supervise hands-on under acting attorney general Matthew G. Whitaker.
Trump’s nominee for the top post, former Attorney General William Barr, has criticized aspects of Mueller’s investigation. His Senate confirmation hearing is scheduled for next week. Rosenstein is expected to leave the Justice Department if Barr is confirmed, although the timing of his departure is unclear.
In preparation for the looming legal battles, Cipollone has been beefing up the White House counsel’s office, which was down to fewer than 20 lawyers late last year, compared with 40 to 50 in past administrations. Four of the five deputies under previous White House counsel Donald McGahn had left the office, The Washington Post reported last year.
Since his arrival in December, Cipollone has expanded the staff to about 35 lawyers, administration officials said, and he aims to bolster the ranks to 40 in the coming weeks. He also hired three deputies, all with extensive experience in the Justice Department and Republican administrations.
Cipollone, a longtime litigator who worked briefly in the 1990s for then-Attorney General Barr, declined to comment. But Jay Sekulow, one of Trump’s personal attorneys, said the new White House counsel has quickly assembled a stable of top-notch lawyers.
“It’s almost as if he’s building a law firm within a government entity,” Sekulow said. “You have very senior lawyers coalescing into a great team.”
Under Cippollone’s guidance, White House lawyers are preparing a strategy to fend off a blizzard of requests expected from congressional Democrats, who are planning to launch investigations into an array of topics such as Trump’s finances and controversial administration policies.
Cipollone’s goal, Trump aides said, is to try to find common ground with the congressional Democrats in responding to their subpoenas when he can, but to draw a clear line that would protect the confidentiality of the office of the presidency.
People who know Cipollone describe him as a self-effacing listener who will work to build relationships on Capitol Hill.
“Pat will be enormously effective, because if you meet him, you are not going to immediately put up your walls,” said Melanie Sloan, a former federal prosecutor who attended the University of Chicago Law School with Cipollone and now helps run American Oversight, a liberal watchdog group.
“Sure, you would expect him to take aggressive stands on executive privilege,” she said. “But if there is a court order, he won’t bring on a constitutional crisis by resisting it.”
Cipollone first met Trump when Fox News commentator Laura Ingraham, a close friend, recommended him to help prepare the then-candidate for the 2016 presidential debates. He began informally advising Trump’s team of personal lawyers in 2018.
In his new role, Cipollone is expected to consult and coordinate with Flood, a veteran of the Clinton impeachment battle, as Flood leads the response to the Mueller report.
Trump advisers are concerned that Mueller – whose team has interviewed numerous White House aides – could include in his report accounts of private communications between Trump and senior advisers such as McGahn and former Chief of Staff Reince Priebus.
“Conversations you had with your White House counsel. Conversations you had with senior advisers. Why should that be subject to disclosure?” said one Trump adviser, who spoke on the condition of anonymity because of the sensitivity of the issue. “It would be catastrophic for the presidency.”
White House lawyers are prepared to make a robust argument that such communications must be kept confidential under executive privilege. They credit former White House lawyer Ty Cobb, Flood’s predecessor, along with Trump’s previous personal attorney John Dowd, with crafting the legal strategy to shield those conversations.
Cobb agreed to turn over extensive internal White House documents and make staffers available for voluntary interviews with the special counsel, relying on a 2008 Justice Department legal opinion that said the department should not provide Congress with privileged information the White House turned over as part of an investigation.
It is unclear whether Mueller or other Justice Department officials would feel limited by that opinion. A spokesman for the special counsel declined to comment.
Trump’s lawyers have noted that the Obama White House also zealously defended executive privilege, including when it resisted sharing the president’s correspondence with then-Secretary of State Hillary Clinton as part of a House investigation.
At the time, one of Cipollone’s new deputies expressed support for that stance.
“Executive privilege is not a partisan issue,” wrote Mike Purpura, at the time a lawyer in private practice. “It’s important to protect the principle of allowing the president to receive candid, full, frank advice from his top advisers without fear that those deliberations and communications will become public.”
Purpura, who also served in the White House counsel’s office under President George W. Bush, previously worked as a top Justice Department official and a federal prosecutor in Manhattan and Hawaii.
Another new White House counsel deputy, Patrick Philbin, who worked with Cipollone at the law firm Kirkland & Ellis, played a role in a famous legal showdown in the Bush administration over secret surveillance of Americans. As a senior staffer for then-Deputy Attorney General James Comey, Philbin joined Comey in rushing to then-Attorney General John Ashcroft’s hospital bedside in 2004 as part of an effort to block a surveillance program they considered legally dubious.
A third new deputy White House counsel, Kate Comerford Todd, was a senior attorney at the U.S. Chamber of Commerce’s litigation center and previously worked as an associate White House counsel in the George W. Bush administration.
They join John Eisenberg, a national security expert who has served as a deputy in the counsel’s office since Trump took office.
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The Washington Post’s Alice Crites contributed to this report.