In what could become a major escalation over privilege, the House select committee investigating the Jan. 6 riot has issued a subpoena to former White House Counsel Pat Cipollone.  Much of Cipollone’s positions and statements have already been made part of the record through documents and witnesses. However, the J6 Committee wants to force him to testify directly. That could trigger a major court right if Cipolone continues to resist testifying.

Cipollone has been rightfully praised for his efforts to oppose the challenge to certification of the 2020 election, his protection of the Justice Department from presidential pressure, and his effort to get former President Donald Trump to publicly call for the riot to end.

I am admittedly a Madisonian scholar who tends to favor Congress in such conflicts. I have testified for years in favor of congressional authority to demand testimony, including in the Trump impeachment. I previously said that privilege challenges to House investigations would and should fail. They did.

However, this is the farthest that Congress has pushed that inherent authority. Cipollone is at the very core of privileges protecting presidents in their communications with close aides. As I have previously discussed, there remains considerable ambiguity in this area.

The Supreme Court laid out the foundation for the privilege in United States v. Nixon and it has been used extensively to deny information to both Congress and the courts in prior controversies.  The Supreme Court treats the privilege as “qualified” and the strongest claim is made when a president can show that the disclosure would impair national security or the functioning of the Executive Branch.

In 1974, the Supreme Court ruled in United States v. Nixon and ordered the release of the Watergate tapes to special prosecutor Leon Jaworski – and ultimately to Congress. Nixon resigned roughly two weeks later. That case has spawned a variety of interpretations of its rejection of executive privilege, including one interpretation I call the “Nixon fallacy.” The fallacy goes something like this: Impeachment so exceeds in importance executive-privilege claims that the Supreme Court has already declared that criminal or impeachment investigations take precedence over privilege so any withholding of testimony or documents is per se obstruction.

In reality, the Supreme Court never said anything like that. Yes, the court rejected what it described as the claim of an “absolute, unqualified Presidential privilege of immunity” to withhold relevant evidence in a criminal investigation. But it did not say that a president could not invoke privilege over the testimony in an impeachment proceeding or that such privilege assertions could not ever prevail. Indeed, it did not even categorically reject such claims in a criminal investigation but simply said that “without more” of a justification from Nixon, the tapes would have to be turned over to the Watergate special prosecutor.

White House Counsel Don McGahn was previously ordered to testify, though that case was based on extreme arguments of immunity. The order was later reversed by the D.C. Circuit. In the messy litigation that followed, the demand was eventually dropped.

The Supreme Court this year denied a motion by Trump to block the National Archive from turning over White House material after a D.C. Circuit opinion rejected the claims. While the Court did not say that a former president cannot make such claims, that is one of the issues still looming in these conflicts. The Court stated:

“Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision. Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta.”

This potential conflict represents the very core of privilege in a close aide giving confidential legal advice to a sitting president.

The question is why fight this fight at this time. The Committee has already created an ample record of the position of Cipollone.  As someone who previously represented the House in litigation, I think that the Committee is risking the creation of potentially bad precedent for the House to get Cipollone to largely confirm what is in the record. In litigation, counsel for Congress tend to follow the Hippocratic Oath that “first do no harm.” That principle has led both houses historically to avoid litigation on these questions whenever possible.

We will now wait to see if Cipollone goes to Court to challenge this effort.