Executive Branch

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

Bob Bauer
Wednesday, December 23, 2020, 1:28 PM

If the president is bent on exploring unconstitutional paths and deploying mendacious, grossly irresponsible rhetoric, it seems entirely inadequate for Cipollone to simply express his objections in private and hope for the best.

The White House at night (Robert Scoble, https://www.flickr.com/photos/35034363287@N01/2617357908; CC BY 2.0, https://creativecommons.org/licenses/by/2.0/).

Published by The Lawfare Institute
in Cooperation With

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 Cohn 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 more than two 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 federal judges, and of election officials. He has urged supporters to turn out to protest in Washington on the day, January 6, 2021, that Congress formally tallies the Electoral College vote in favor of President-elect Biden. And he is suggesting, with more than a hint of encouraging disruptions, that the clamor he is calling for will be “wild!”

If the president is bent on exploring unconstitutional paths and deploying mendacious, grossly irresponsible rhetoric, it seems entirely inadequate for Cipollone to simply express his objections in private and hope for the best. Yes, it is better for him to carry the case for presidential behavior that respects the constitutional process and conforms to historic norms. To the extent that his approach has helped to deter the president (so far), he is to be commended.

But whatever may be his influence, and however hard he may be working to curb the president’s most dangerous urges, the fact remains that we can only guess at what is now going on in the White House. We have to rely on press reports. And these extraordinary circumstances are quite unlike the normal context for a White House counsel’s work, where a real or fanciful constitutional question raised by a policy initiative is considered and disposed of. Trump is doing what no other president before him has done in directing an all-out—if doomed—assault on the electoral process. We may need more from the White House counsel than the hope that he is doing the best he can.

Where might Cipollone look for guidance in the present circumstances?

Another senior lawyer in the administration, Attorney General William Barr, has decided to be very public about his views of the president’s attack on the election. He has taken the time prior to his departure to dispute the president’s claim of voting fraud and his interest in the appointment of a special counsel to investigate it. Certainly during his time as attorney general, Barr has made public statements and taken actions entirely inappropriate for his role and harmful to the Department of Justice. But at least on the critical matter of the president’s postelection refusal to accept the results, he has taken a stand.

Cipollone, who is as much a government lawyer as is the attorney general, faces a similar choice. He might take into consideration the requirements of the Code of Ethics for Government Service: “Uphold the Constitution, laws, and legal regulations of the United States … and never be a party to their evasion.”

No public report suggests that Cipollone is a party to evading the Constitution. However, he’s a witness to the efforts of others to devise just such a means of evasion. And given that the code also calls upon government officials and employees to “expose corruption wherever discovered,” he should consider resigning and calling out the president for his conduct.

A reasonable concern with this course of action is that, if Cipollone resigns, he silences his own voice in the Oval Office debates. And as far as we can tell from reports, his views may have made a difference for the better. Trump could also promptly replace him with an enabling successor—maybe Sidney Powell! This is always the trade-off: If he goes, someone worse could take his place. This is also sometimes the rationalization for staying on when professional ethics, public accountability and the dictates of conscience should pull in the other direction. Resignation serves the purpose of bringing to public attention, through an act of direct testimony, what in a case like this should not be hidden. The public and Congress should know precisely what the president is scheming to do to undermine the election and destroy public confidence in it, and not have to rely on a rash of leaks that may, or may not, capture the full story.

As one example of how Cipollone resigning and speaking out could answer important questions, the president has now denied that he discussed the potential for imposing martial law. But did Trump explore that possibility? We should not have to trust in his word for the answer.

And there are other reasons for Cipollone to resign in the present circumstances and give his reasons. There is a strong case for a White House counsel refusing continued service to a president who daily peddles dangerous falsehoods to the public about the reliability of the electoral process and the integrity of the judiciary. The act of resignation to protest both a president’s serial, public lies about the election, as well as his exploration of avenues for an unconstitutional power grab, would establish an important precedent for the Office of the White House Counsel. There must be limits to the acquiescence to a president’s misconduct that is expected of those on the president’s “team,” especially for the most senior lawyer in the White House. Resignation, accompanied by the reasons for it, would help define and affirm those limits.

It is important to distinguish carefully the reasons for a lawyer in Cipollone’s position to consider his next step. Recently a former lawyer in the Department of Justice’s Office of Legal Counsel, Erica Newland, published an apology for remaining within the Trump administration on the rationale that, by providing sound legal advice, she could limit the harm done by the president’s policies. She has since concluded that she merely enabled the execution of those policies. Had she and other lawyers with her qualifications and policy reservations resigned, she has concluded, she would have complicated the president’s program by leaving him at the mercy of lawyers like those Trump has drawn to his election disputes—that is, lawyers far from the top ranks of the profession.

But Newland is speaking here of a very personal question that lawyers may ask themselves about whether they wish to provide legal support for policies they may disagree with. Remaining on duty and casting those policies in a legally defensible form may be a choice they come to regret. But Cipollone is in a qualitatively different position. As a senior government lawyer—as the White House counsel—he is confronted with a serious ethical challenge, which should not be confused with Newland’s more personal quandary.

For Cipollone’s problem is one that has haunted the White House counsel’s office from its very beginnings. Critics of the office have suggested that it is rife with the “potential for conflict because of its political nature.” This is true. The counsel is a senior White House aide who attends meetings and addresses issues that are shot through with political implications and significance. As a member of the president’s “team,” he or she is vulnerable to persistent demands within that environment to act like one. It is in this environment that the expectation of loyalty, even if not of the extreme sort that Trump has emphasized, can overwhelm the better judgment of lawyers who should know better. The best White House counsels can navigate that territory successfully, but there are two requirements: one, that he or she recognizes the role, which is that of a government lawyer, not a personal or political lawyer to the president; and two, that the president shares this understanding.

For the counsel who struggles to advise a president who is unwilling or unable to accept the White House lawyer’s role—a president like Trump whose lawyering model is Roy Cohn—resignation must remain an option. And where the counsel is witness to serious presidential misconduct, resignation may be more a necessity than an option. Setting these clear ethical expectations for this office may help temper the fears of critics that “anything goes” for White House counsels, that even if they disagree strongly with a president’s conduct, they somehow owe continued service—and silence.

First it was McGahn, then Barr, and now Cipollone. These senior government lawyers have all faced the exceptional ethical problem of representing a government led by a president who lacks respect for the role of lawyers—beyond the “loyalty” they are prepared to show him—or for legal and constitutional boundaries. McGahn and Barr made their choices. The time has come for Pat Cipollone to make his.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

Subscribe to Lawfare