Trump fighting to bar use of White House lawyers' grand jury testimony in special counsel probe: Sources

Trump wants to bar the use of testimony from Pat Cipollone and Patrick Philbin.

March 6, 2023, 2:32 PM

Former President Donald Trump is seeking to prevent the special counsel investigating efforts to overturn the 2020 election from using testimony provided by former top White House lawyers to a federal grand jury, sources familiar with the matter tell ABC News.

In recent weeks Trump's attorneys have asked a court to bar special counsel Jack Smith from using testimony from former White House counsel Pat Cipollone and his former deputy Patrick Philbin as evidence in Smith's ongoing investigation into the events surrounding Jan. 6, said the sources, who spoke about the confidential court battle on the condition of anonymity as they were not authorized to discuss nonpublic litigation.

Trump's lawyers have also filed to prevent Smith from using former Trump lawyer Eric Herschmann's grand jury testimony, the sources said.

Prosecutors in Smith's office have urged an appeals court to reject Trump's efforts, arguing that the matter is moot given that the three men have already spoken to the grand jury, the sources said in regard to the sealed testimony.

Representatives for Cipollone, Philbin and Herschmann did not respond to a request for comment from ABC News. The special counsel's office declined to comment.

"The DOJ is continuously stepping far outside the standard norms in attempting to destroy the long-accepted, long-held, Constitutionally based standards of attorney-client privilege and executive privilege," a source close to Trump who is familiar with the issues told ABC News.

Investigators late last year overcame a previous legal challenge that was made on the grounds of executive privilege. Both Cipollone and Philbin appeared before the grand jury in September 2022, but declined to answer some questions until issues surrounding claims of executive privilege were resolved. Chief Judge Beryl Howell of the U.S. District Court in Washington, D.C., ruled that claims of privilege by Trump didn't apply, and Trump's legal team did not seek to stay the ruling.

PHOTO: White House Counsel Pat Cipollone waits for the beginning of a cabinet meeting in the East Room of the White House, May 19, 2020 in Washington, DC.
White House Counsel Pat Cipollone waits for the beginning of a cabinet meeting in the East Room of the White House, May 19, 2020 in Washington, DC.
Alex Wong/Getty Images, FILE

Cipollone and Philbin then appeared before the grand jury for a second time in December 2022. Trump's lawyers appealed Howell's ruling about a month later, after the two had already provided additional testimony.

Cipollone was one of the few aides with Trump during the Jan. 6, 2021, Capitol riot, and is said to have significant insight into events before, leading up to, and after the attack. In the days following Jan. 6, Cipollone advised Trump that Trump could potentially face legal jeopardy in connection with his role encouraging supporters to march on the Capitol, sources said following the attack.

Both Cipollone and Philbin were part of a Jan. 3, 2021, Oval Office meeting where Trump mulled replacing then-acting Attorney General Jeffrey Rosen with Jeff Clark, a Trump loyalist who had vowed to use the DOJ to investigate alleged 2020 election irregularities.

Trump's previously undisclosed attempt to suppress the lawyers' testimony adds yet another dimension to the ongoing efforts by his legal team to slow the fast-paced developments in Smith's investigations -- including Smith's separate probe into Trump's alleged mishandling of classified documents after leaving office and Trump's potential obstruction of the government's efforts to retrieve them.

Last month DOJ investigators probing Trump's handling of classified documents asked a judge to overrule attorney-client privilege and compel Trump attorney Evan Corcoran to answer questions about his interactions with Trump before a grand jury, sources previously told ABC News. The DOJ made the request on the basis of the crime-fraud exception, sources said, which allows for attorney-client privilege to be suspended in cases where it is suspected that legal services were rendered in the commission of a crime.

Oral arguments in the matter are scheduled for later this week, according to sources.

The special counsel has also asked a federal judge to compel former Vice President Mike Pence to testify after Pence was subpoenaed last month as part of the Jan. 6 probe, sources familiar with the matter previously told ABC News. Last week, Trump's attorneys filed a motion to prevent Pence from testifying on the grounds of executive privilege.

Sources told ABC News that in February, prosecutors investigating efforts to overturn the 2020 election also moved to compel testimony from a number of other top Trump aides, including former chief of staff Mark Meadows. In some cases the motion seeks to break through claims of executive privilege that either some of the witnesses or attorneys for Trump have attempted to assert.