Former New York mayor Rudolph Giuliani speaks in Washington at a rally in support of President Donald Trump, called the "Save America Rally" on January 6, 2021. Photo / AP
A few hours after rioters laid siege to the US Capitol, overpowering police in a violent attack on the seat of American democracy on January 6, 2021, the White House’s top lawyer, Pat Cipollone, called his boss with an urgent message.
It’s time to end your objections to the 2020 election, Cipollone told Donald Trump, and allow Congress to certify Joe Biden as the next president. Trump refused.
Trump was no longer listening to his White House counsel, the elite team of attorneys who take an oath to serve the office of the president. But by all accounts, he hadn’t been listening to them for some time.
The extraordinary moment — fully detailed for the first time in the latest federal indictment against Trump unsealed last week — vividly illustrates the extent to which the former president’s final weeks in office were consumed by a struggle over the law, with two determined groups of attorneys fighting it out as the future of American democracy hung in the balance.
Trump’s attempts to remain in power, according to the indictment and evidence compiled in congressional investigations, were firmly rejected by Cipollone and his top deputy, Pat Philbin. So Trump turned to outside allies including Rudy Giuliani, John Eastman and Kenneth Chesebro, among other legal advisers, to launch what federal prosecutors have called a “criminal scheme” to fraudulently overturn the election.
Cipollone and Philbin had been heard from before, as both testified to the House January 6 committee under subpoena. But they were unable to disclose to Congress their interactions with Trump, citing the executive privilege that customarily shields their work in the White House.
Special counsel Jack Smith, who brought the indictment against Trump, faced no such barrier. A federal judge ruled the lawyers had to testify about their interactions with Trump in the chaotic weeks before the January 6 insurrection.
As a result, prosecutors were able to obtain extraordinary new details that were used in the indictment of the former president. And Cipollone and Philbin seem likely to become important witnesses in Trump’s upcoming trial.
Requests for comment from them were not returned.
The breakdown of the relationship between Trump and his White House counsel — a lawyer-president arrangement that dates back to Franklin D Roosevelt — began in the weeks after the 2020 presidential election. Cipollone and Philbin at the time were providing “candid” advice to Trump that there was no evidence of fraud that could change the results of the election.
Despite this advice, Trump began to parade outside advisers into the White House for a series of long, contentious and at times nasty meetings about steps he could take to challenge the election.
In a now infamous December 18, 2020 session in the Oval Office, Trump allies including Sidney Powell and Michael Flynn, the former national security adviser, proposed ordering the military to seize voting machines in crucial states Trump had lost.
Cipollone was blindsided by the meeting, having learned of it just as he was about to leave the White House for the night. He recalled in testimony to the January 6 committee that Trump’s advisers “forcefully” verbally attacked him and other White House lawyers when they shot down the idea of seizing voting machines.
“It was being brought to the president by people who I don’t believe had his best interest in mind,” Cipollone told lawmakers in June 2022. “They were doing the country and the president, both in his capacity as president and his personal capacity, a disservice.”
Attorneys who have served as White House counsel said they were dumbfounded by what they read in the Trump indictment, calling the situation “unbelievable” and unlike anything they experienced in office.
“You cannot be effective as a lawyer, not just as White House Counsel, as a lawyer to any client, if you cannot have candid conversations about legal requirements,” said Alberto Gonzales, who served as President George W Bush’s White House counsel. “In the case of the presidency, to protect them from engaging in conduct, that while it may not turn out to be criminal, will have serious political consequences.”
And that is exactly what prosecutors say White House lawyers attempted to do. By January, when it was clear that they could not get Trump to listen, the lawyers began warning others about the grave consequences of continuing to deny the results of the election.
Three days before January 6, Philbin told Jeffrey Clark, a Justice Department lawyer, that if Trump remained in office despite no evidence of fraud there would be “riots in every major city in the United States”.
To which Clark, according to prosecutors, responded: “That’s why there’s an Insurrection Act,” referring to the specific statute that gives the president the power, in rare circumstances, to use military force inside the United States.
In a meeting that evening, Trump met with leadership at the Justice Department as well as Cipollone and Philbin to express his frustration that the Justice Department was “failing to do anything to overturn the election results,” the indictment stated.
Clark, a low-level Justice Department attorney who had positioned himself as an eager advocate for election fraud claims in the weeks after the election, was in attendance. He was pushing to send a letter to key state legislatures stating falsely that the Justice Department had identified problems in the election results.
In that contentious January 3 Oval Office meeting, Trump toyed with replacing acting Attorney General Jeffrey Rosen with Clark but backed down after he was told that it would result in mass resignations at the Justice Department and his own White House counsel’s office. Cipollone scathingly called Clark’s draft letter a “murder-suicide pact”.
“There is no world, there is no option in which you do not leave the White House on January 20th,” Philbin told Trump that day, according to the indictment.
By January 4, Trump, tired of hearing no from his White House lawyers, began to convene meetings behind their backs, according to the indictment.
Kathryn Ruemmler, who served as Barack Obama’s White House counsel, said if she had ever been “intentionally excluded” from meetings where the president was being given contrary legal advice, she would have resigned.
“You really can’t operate at all under those circumstances and conditions,” she said.
That day Trump also met with then-Vice President Mike Pence and his chief of staff and legal counsel. The point of the meeting was for Trump — who at that point had lost numerous lawsuits and failed to identify evidence of widescale fraud — to convince Pence to use his ceremonial role overseeing the counting of the Electoral College votes on January 6 to prevent Biden from becoming president.
Pence, both in that meeting and days later on January 6, refused to do so. Since the indictment, he has said Trump was led astray by a group of “crackpot lawyers” who wanted to violate the Constitution.
But even in the hours after the January 6 riot, as police struggled to clear the Capitol, Trump wasn’t done trying to stop the certification of the election.
Trump and Giuliani began to make calls to Republican lawmakers in the House and Senate after the riot, according to the indictment, seeking to “exploit” the violence of the day to convince them they should delay naming Biden the winner.
Amid it all, Cipollone made his own final plea to Trump in a phone call at 7.01pm asking him to withdraw his objections and allow the certification to move forward.
“I expressed what I needed to express,” Cipollone told lawmakers last year, when describing the call. He declined at the time to reveal what was said.
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