The White House Counsel and Trump’s Attack on the 2020 Election

During Robert Mueller’s special counsel investigation, President Trump was famously quoted as complaining about the quality of the lawyering he was getting. To him, the notorious Roy Cohen set the gold standard: “a very loyal guy” who had been “vicious to others in his defense of me.” Trump did not believe that his White House counsel Don McGahn, much less his first attorney general Jeff Sessions, met the loyalty test.

And now it appears that Trump feels that Pat Cipollone, his current White House counsel, is also failing it. Jonathan Swan reports that Trump is “fed up” with this White House counsel. The president has been meeting in the Oval Office with the likes of Sidney Powell and Michael Flynn, entertaining proposals for overturning the 2020 election that include the seizure of voting machines and the imposition of martial law. And Trump has apparently concluded that Cipollone is unacceptably faint of heart. Cipollone’s offense apparently lies in his strenuous objections to the various attacks on the 2020 presidential election that Powell and company are urging a willing president to consider.

The question that these appalling Oval Office stories present is not whether the president can overturn the election. He cannot. It is how Cipollone will respond. Is it enough for him to register his disapproval in Oval Office discussions? Or should the White House counsel take other action to emphasize the nature of his role and the obligations that come with it: Cipollone is a lawyer for the government, not a personal or political lawyer for the president, and he is accountable to the public for how he responds to extraordinary situations such as these.

[Disclosure: I have served as a senior adviser to the Biden presidential campaign and have also written previously on the role of the White House Counsel for Lawfare and other publications, and in After Trump: Reconstructing the Presidency, co-authored with Jack Goldsmith.]

In the past, Cipollone has accommodated the political pressures to which the president has subjected him. During the impeachment process, he took up what, for a White House counsel, was a discordantly political defense of the president. He participated in the impeachment trial and heaped invective on the House managers whom he accused of a “hypocrisy” so bad that, he declared, he could barely listen to it.

In an ironic twist, at that time, he purported to be concerned with what he believed to be the Democrats’ “naked political strategy” to overturn the results of another election—the last one, in 2016. His conduct during this episode raised ethical issues. He disregarded evidence that he was a material witness to the very matter—Trump’s pressure on the Ukraine government to launch and announce an investigation of a political opponent—that was the subject of the impeachment inquiry. Legal experts like New York University’s Stephen Gillers pointed out that a lawyer may not ethically advocate for a client in a matter in which he or she would also be a material witness. The House managers raised the issue with Cipollone, noting that he has been in the middle of discussions within the executive branch about the president’s actions. Yet Cipollone took to the floor of the Senate as a leading member of the president’s defense team.

Cipollone has remained on the job for two over years and the vast bulk of his work, as in the case of all White House counsels, does not surface for public viewing and judgment. It’s possible that we might later find, or he may one day claim, that he did the country a great service over this period by giving into the president’s demands on some issues so that he could buy himself the space to resist him on others. If you can believe current press reports, that is what he is doing now. But, as others before him have discovered, Trump does not appear to credit past loyalty in reacting to unwelcome advice.

And now, the president is behaving in a way that demands more public action from Cipollone. The president is acting like no other president before him—disregarding the duties of his office while actively undermining public confidence in the election and exploring various schemes to overturn it through blatantly unconstitutional means. Pat Cipollone is left to raising his voice during Oval Office struggles so that he can be heard above the outlandish advice from Powell, Flynn, Rudy Giuliani and others. It is wrong to see all this as just talk that Cipollone can simply wait out. A president’s words and ethical comportment matter.

In this instance, they matter a great deal. Day in and day out, the president is lying about the election: he has made demonstrably false statements about the access afforded to Republican observers, about illegal “dumps” of votes in the dead of night, about rigged voting machinery, and more. He has attacked the motives and character of state and Become a supporter of IT Security News and help us remove the ads.