The move is part of an effort by prosecutors to punch through the claims of privilege the former president is using to hamper the investigation of his push to overturn the election.
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Pat A. Cipollone, the former White House counsel, has appeared before a federal grand jury but declined to answer some questions.
The Justice Department has asked a federal judge to force the two top lawyers in Donald J. Trump’s White House to provide additional grand jury testimony as prosecutors seek to break through the former president’s attempts to shield his efforts to overturn the 2020 election from investigation, according to two people familiar with the matter.
Prosecutors filed a motion to compel testimony from the two lawyers, Pat A. Cipollone and Patrick F. Philbin, last week. They told Beryl A. Howell, a judge in Federal District Court in Washington who oversees grand jury matters, that their need for the evidence the men could provide should overcome Mr. Trump’s claims that the information is protected by attorney-client and executive privilege, the people said.
The filing was the latest skirmish in a behind-the-scenes legal struggle between the government and Mr. Trump’s lawyers to determine how much testimony witnesses close to the former president can provide to the grand jury, which is examining Mr. Trump’s role in numerous schemes to reverse his election defeat, culminating in the mob attack on the Capitol on Jan. 6, 2021.
Mr. Cipollone, Mr. Trump’s former White House counsel, and Mr. Philbin, who served as his deputy, initially appeared before the grand jury last month after receiving subpoenas, but declined to answer some of the questions prosecutors had about advice they gave to Mr. Trump or interactions they had with him in the chaotic post-election period, one of the people familiar with the matter said.
The government’s filing, which was reported earlier by CNN, asked Judge Howell to force the men to return to the grand jury and respond to at least some of the questions they had declined to answer.
If compelled to testify fully, Mr. Cipollone and Mr. Philbin could provide the grand jury with firsthand accounts of the advice they gave Mr. Trump about his efforts to derail the results of the election with a variety of schemes, including one to create fake slates of pro-Trump electors in states won by Joseph R. Biden Jr. They could also tell the grand jury about Mr. Trump’s activities and mind-set on Jan. 6 and the tumultuous weeks leading up to it.
Judge Howell has already ruled in favor of the government in a similar privilege dispute concerning testimony from two top aides to former Vice President Mike Pence, Marc Short and Greg Jacob, according to several people familiar with the matter. Both Mr. Short and Mr. Jacob returned to the grand jury this month and answered questions that Mr. Trump’s lawyers had sought to block as being privileged during their original appearances.
ImageProsecutors are also seeking to force Patrick F. Philbin, the former deputy White House counsel, to provide additional testimony.Credit…Erin Schaff/The New York Times
The closed-door battle over how much evidence the grand jury should hear about Mr. Trump’s role in reversing his defeat and how much should be kept away as privileged is almost certain to continue as more witnesses close to the former president are called in for testimony.
Last month, about 40 subpoenas were issued to a large group of former Trump aides — among them, Mark Meadows, Mr. Trump’s final chief of staff; Dan Scavino, his onetime deputy chief of staff for communications; and Stephen Miller, Mr. Trump’s top speechwriter and a senior policy adviser.
It is likely that Mr. Trump will try to assert some form of privilege over the testimony of each of those potential witnesses in a bid to narrow what the grand jury can hear about him.
Even as the Justice Department presses forward in seeking evidence about Mr. Trump’s involvement in the events leading up to the Capitol attack, the House committee investigating Jan. 6 is also continuing to hear from witnesses.
On Tuesday, Hope Hicks, a former top aide to Mr. Trump, testified for about four hours in front of the panel, according to two people familiar with the matter.
The interview of Ms. Hicks, which was conducted virtually, came late in the committee’s 16-month investigation and after it has most likely concluded holding public hearings. Still, the members of the panel have kept pushing for more information about Mr. Trump’s state of mind in the final weeks of his administration and how often he was told there was no evidence of a stolen election.
During a meeting with Mr. Trump, Ms. Hicks told the former president that she had seen no evidence of widespread fraud that could overturn the results of the election, according to the book “Confidence Man” by Maggie Haberman, a reporter for The New York Times.
“You’re wrong,” Mr. Trump replied, hoping to scare others out of agreeing with her.
Throughout August, the panel interviewed top administration officials, including Robert O’Brien, Mr. Trump’s former national security adviser; Elaine Chao, the former transportation secretary; and Mike Pompeo, the former secretary of state. Investigators asked questions regarding reports of discussions about invoking the 25th Amendment to remove the president from office, among other topics.
Ms. Hicks served as the White House communications director in 2017 and 2018 and then returned to the White House as a counselor to Mr. Trump during his final 10 months in office.
It was not immediately clear exactly what Ms. Hicks told the committee, but investigators went over certain text messages with her, according to a person familiar with the matter.
A spokesman for the committee and a lawyer for Ms. Hicks declined to comment.
Maggie Haberman and Glenn Thrush contributed reporting.
Source: nytimes.com
