Pat Cipollone is poised to take on one of the most difficult jobs in Washington: counsel for President Trump’s White House.
The commercial litigator has been chosen by the president to replace outgoing White House counsel Don McGahn at a time when Democrats are salivating at the prospect of congressional power.
{mosads}Many might not want to take on the high-profile assignment, which could be grueling and demanding come January. If Democrats take control of the House after the Nov. 6 midterm elections, Cipollone would be the lead defense against an investigative assault being readied on Capitol Hill.
Experts say the seats that flip next month from red to blue will likely become occupied by lawmakers who promised to serve as a check on Trump through investigations and subpoenas. Some even campaigned on promises to impeach him.
Jonathan Turley, a George Washington University professor of law and opinion contributor to The Hill, said McGahn has faced one of the most trying periods as a White House counsel in the history of the position, working for a client who was unpredictable and often uncooperative.
“The new White House counsel is going to face a different but equally challenging set of issues,” he said. “He will very likely face a House of Representatives under the control of the Democrats, which means he will likely face a hostile house of Congress with subpoena power.”
Democrats need to net 23 seats to take back the House in November. Polling analysis site FiveThirtyEight said Democrats have around an 84 percent chance of winning the majority.
Democrats are said to be eyeing an ambitious legislative agenda, and they appear ready to flex their oversight muscles.
“What I have been asking my Republican chairmen to do all along is to gather basic facts about the crisis of corruption in the Trump Administration,” Rep. Elijah Cummings (D-Md.), ranking member of the House Oversight and Government Reform Committee, said in a statement. “The waste, fraud, and abuse is plain to see — and the most important thing for the Oversight Committee to do is to get back to regular order by obtaining documents and interviewing witnesses, and actually holding the Trump Administration accountable to the American people.”
If Democrats are wielding committee gavels, they are expected to launch various investigations into administration actions ranging from its separation of families crossing into the U.S. illegally to the addition of a citizenship question to the 2020 census.
Investigations into Trump’s tax returns and possible violations of the Emoluments Clause of the Constitution are also likely.
But some former officials say it shouldn’t be the counsel’s job to defend the president against personal criminal wrongdoing.
“There should be outside counsel hired by the White House to do that,” said Alberto Gonzales, who served as White House counsel in the George W. Bush administration before becoming U.S. attorney general.
The in-house counsel’s main job, Gonzales said, should be brokering deals between Congress and the White House when it comes to investigations and requests.
“Congress is going to want access to information, documents and emails in connection to certain decisions, and the White House is going to push back,” he said. “The White House counsel negotiates with Congress to reach an accommodation, maybe give a briefing or written summary.”
If all else fails, Gonzales said, executive privilege can be exerted, but it should be a weapon of last resort.
McGahn is expected to step down at some point this fall, though that date has not been announced. Asked when McGahn plans to leave his post, White House spokeswoman Lindsay Walters said Tuesday that the administration does not have any announcements at this time. Trump told The Associated Press on Tuesday that Cipollone would be the next White House counsel.
Cipollone, a litigation partner at the D.C. firm Stein Mitchell Cipollone Beato & Missner LLP, has donated at least $23,000 to Republican candidates since 2004, according to data collected by the Center for Responsive Politics, which did not indicate he contributed to Trump’s campaign. But he was an early supporter of Trump, according to multiple media reports.
As White House counsel he will be expected to put the office above his allegiance to the man who helms it.
“The White House counsel is there to protect the integrity of the White House and the office of the presidency,” Turley said. “It’s an unpleasant task to tell the president he’s contemplating an action that is either unlawful or unwise.”
Trump is known for demanding loyalty from the people he appoints, and for excoriating those he feels have betrayed him. Attorney General Jeff Sessions has seen it firsthand. The former senator from Alabama has been the subject of repeated attacks stemming from his decision in 2017 to recuse himself from oversight of investigations into Russian meddling in the 2016 presidential election.
Trump said he would not have hired Sessions as the nation’s top prosecutor if he had known that would happen.
“I don’t have an attorney general. It’s very sad,” Trump told Hill.TV last month.
Experts say that when Cipollone takes the job he should be particularly mindful of the fact that there is no absolute attorney–client privilege protecting the White House counsel’s conversations with the president.
“He’s at grave risk to himself, his bar license and perhaps even criminal prosecution if he does everything Trump tells him to do,” said Richard Painter, former chief ethics lawyer in the George W. Bush White House. “He’s going to have his work cut out for him.”
McGahn provided detailed accounts to special counsel Robert Mueller’s team regarding an inquiry into whether Trump obstructed justice in the Russia probe, The New York Times reported in August.
Painter, who launched an unsuccessful bid for former Sen. Al Franken’s (D) seat in Minnesota after switching to the Democratic Party, said Trump is a client who doesn’t understand the legitimate functions of the Justice Department, the federal government or its intelligence agencies.
“He believes they are there to serve his political purposes. He says it on Twitter,” Painter said.
“It’s a challenging job,” he added. “For a White House lawyer, you either have to say no to Trump or risk assisting him in the obstruction of justice.”