Chickens and Witnesses
These two are too cute not to share with you. They are the last two chicks I’m keeping from this year’s hatchlings: Cleopatra, on my shoulder (she has amazing natural eyeliner), and Florence (she has a lovely chirping voice), who has taken up residence on my head. They’re in a really lovely brooder box in our laundry room, because we have some bad storms rolling through and, truth be told, they’re awfully good company.
Meanwhile, some interesting witness testimony is in the works this week.
Hope Hicks sat down for a formal deposition, under oath, with the J6C yesterday. Hicks left the White House for Fox News after serving as communications director, but was among the Trump faithful who returned at the end of the administration. Multiple books have reported variations on the same conversation between Hicks and Trump, with Hicks telling him he couldn’t win and Trump refusing to consider conceding. Her testimony, now that it has happened under oath, could prove interesting. Did they ever have a conversation where he conceded he’d lost but told her he had to keep fighting? Hicks may be able to provide unique details regarding Trump’s state of mind or other details regarding his behavior. Interesting that the woman formerly billed as the Trump-whisperer is only just now testifying. It’s unclear whether the committee is simply cleaning up unfinished details or believes Hicks has important testimony to offer.
On the DOJ end of things, there are reports prosectors will compel Kash Patel to testify in the Mar-a-Lago investigation after he reportedly asserted his 5th Amendment right to avoid self-incrimination, repeatedly, when subpoenaed to the grand jury. Patel is another Trump loyalist. A former DOJ prosector, he worked for Trump on the national security side of the house and when Trump appointed Chris Miller to be the Secretary of Defense a week after losing the election, he sent Patel along with him to serve as chief of staff. (You’ll recall I have questions about that whole scenario).
Patel has said publicly that he saw Trump declassify MAL documents while still in the White House—an evidence-free claim even Trump’s lawyers seem to have abandoned in litigation. So you can understand why Patel might have a little heartburn about testifying under oath, either repeating what appears to be a lie and risking perjury charges or recanting the lie and incurring Trump’s wrath.
What does this mean for the Mar-a-Lago investigation? Patel was in the thick of things here and it’s entirely likely he has some exposure himself. DOJ gets testimony from people like him in one of two ways; either by entering into cooperation agreements where a witness testifies voluntarily in exchange for a favorable plea deal, or, less frequently by giving a witness use immunity in exchange for testifying. With immunity, the testimony and any information developed as a result of it can’t be used against the witness in a future prosecution, but they lose their 5th Amendment right to abstain from truthful testimony.
Offering Patel immunity for his testimony suggests that DOJ is focused on a bigger target: Trump. Federal prosecutors don’t seek immunity for the kind of spaghetti they throw up against the wall to see what sticks. Seeking use immunity requires high level DOJ approval, even in a more routine matter. Here, it almost certainly signifies DOJ has Trump squarely in its sights and that he is a target of the investigation. Patel, having lost the option to duck questions, will have to decide whether to lie for Trump and risk prosecution or come clean. As a former prosecutor, he should have an acute understanding of what the first path would mean for him. Patel has stuck resolutely with Trump so far, but somewhere a prosecutor is telling him that he can either be a witness or a co-defendant. Only a fool would take the later choice here.
DOJ is also trying to compel two lawyers from Trump’s White House counsel office, former White House counsel Pat Cipollone and deputy White House counsel Patrick Philbin, to testify against Trump regarding the insurrection. The White House counsel’s office represents the presidency, not the president, so this fight is primarily about executive privilege, not attorney-client privilege, although there’s still a slice of that here, since Trump was not their client. That hasn’t kept the former president from fighting to prevent their testimony.
A similar analysis to the one that permitted piercing the privilege John Eastman tried to assert over his emails is likely to apply here. The law is less clear, but the same principle, that as with the attorney-client privilege, executive privilege can't be a shield for hiding criminal conduct comes into play. That would mean that there would be a legitimate scope where the privilege would prevent testimony and a more narrowly drawn area where the lawyers’ testimony could be compelled. If you watched the J6C hearings, you know that the lawyers refused to answer questions about their conversations with Trump, asserting privilege. And of course, those are the most important bits. DOJ wants their testimony about those conversations with Trump about losing the election and his plans to hold onto power.
Increasingly, if belatedly, Congress and prosecutors are having success at getting those in Trump’s inner circle to sit down with them, voluntarily or otherwise. But that progress, and the fate of these multiple efforts to hold Trump accountable is unavoidably intertwined with the outcome of the midterm elections, which are now less than two weeks away.
How do you talk to people who don’t seem to be focused on the trite but true essence of this election, that democracy is on the ballot? This tweet captures an important aspect of it and may be a helpful share with friends and family, as we encourage everyone to vote for candidates who support democracy, right down to the wire.
We’re in the together,