Impeachment Trial Analysis, Day 10: ‘The Cake, I Think, Came Pre-Baked’

As President Donald Trump’s impeachment trial unfolds, Courthouse News will be reaching out at the close of each day to prominent attorneys, scholars and other experts in the legal community for analysis on the historic proceedings. Joining us roughly two hours before the vote to prohibit witness testimony is Heidi Feldman, a professor at Georgetown University School of Law.


WASHINGTON (CN) – Now, it’s official. What has been described as the Senate impeachment trial of President Donald Trump will not include the trappings of one: witnesses or discovery of evidence.

Georgetown University School of Law Professor Heidi Feldman, for one, is not surprised.

Georgetown University law professor Heidi Feldman.

“The cake, I think, came pre-baked,” Feldman told Courthouse News, some two hours before the historic vote.

The Senate may have closed its ears to additional evidence, but the same is not true in the judicial branch and the Fourth Estate. The latest New York Times glance at Ambassador John Bolton’s upcoming book on Friday reported that it told of a meeting where Trump asked him to assist with a pressure campaign to extract damaging information against Democrats from Ukrainian officials.

Bolton wrote that Trump’s chief of staff Mick Mulvaney, personal legal maven Rudy Giuliani and White House counsel Pat Cipollone also attended the meeting.

Since Cipollone has led Trump’s impeachment team, the allegation raised questions about whether the White House counsel committed ethical violations punishable by disbarment. Asked about that question, Feldman took a considerable pause before answering: “Yes.”

Read the explanation for her answer below.


What were the biggest things that stood out about [the New York Times story on Ambassador Bolton] for you and what does it mean for Pat Cipollone?

Well, I mean I think we’re going to keep seeing this with the Bolton manuscript, as more and more of it comes out. More and more people around the president will have, [Bolton will] be pointing out all the different ways they were involved in the events that led to the president’s impeachment… The fact that Cipollone was in the room with Bolton and Giuliani and Trump, while Trump was there telling Giuliani to go and pressure [Ukrainian President Volodymyr] Zelensky is unsurprising given that Trump would have no concern about talking about doing corrupt and arguably illegal things in front of his lawyer. What’s kind of striking to me as someone who specializes in legal ethics over the years, is that: Okay, a lawyer can discuss with the client a wide range of conduct, but from the way Bolton is describing this, Cipollone just sat there. Now, I realize that I’m just taking Bolton’s word for what went on, but let’s just assume for the sake of this conversation Bolton’s being accurate because I’m not particularly skeptical of him. So, Cipollone’s just sitting there while Trump is encouraging some pretty bizarre measures, and Cipollone has been a lawyer in DC for a long time. He knows that that was potentially problematic for all sorts of reasons and his job as an attorney—any attorney—to say to a client, ‘Wait a minute. We need to think about whether that’s appropriate. You might be suggesting something that’s legally problematic.’ That’s his job, and it sounds like–I mean, the impression one gets is that that certainly wasn’t happening, but what’s even more shocking is now Cipollone’s standing up in front of the Senate and saying, “President Trump was only you know interested in rooting out corruption not getting dirt on Biden.’ But if he was there in the room when the president is saying, ‘Go get the dirt on Biden.’ It’s very shocking that he sort of seems to be sitting passively in the room when the president is suggesting a line of conduct, which is at best unethical and Cipollone should have been thinking possibly unconstitutional and illegal. And then, to go into to the impeachment trial and stand up in front of the Senate and say things that are counter to the truth and to feed the Senate straight-up lies is so contrary to what a lawyer is supposed to do, both in terms of any understanding of the basic rules of professional responsibility espoused by various bar associations but also on a deeper level. It suggests that Cipollone just doesn’t have any understanding of—or a commitment to, because I’m pretty sure he does understand this—no commitment to the lawyer’s function at ensuring that trials, whether they be in the Senate or they be in the courtroom, mechanisms for actually meting out just results on the basis of reliable evidence. And for a lawyer to facilitate a sham trial really is so deeply… It just degrades that person as a professional entirely.

So, to put it bluntly, if this report is true and Pat Cipollone is acting as the White House advocate during this trial at the same time that he’s a material witness, could he be disbarred?

(Long pause) Well he… Yes, to just be very simple… The reason I’m pausing before I just say ‘yes’ is because, the problem that is raised is that: First of all, you’re not supposed to represent a client when doing so creates a conflict of interest for you. So, a lawyer who’s been a material witness to a client committing an illegal act has a problem because they have ethical obligations of disclosure which make it inconsistent for them to also be representing that client. Now in an ordinary case, the clients might try to prevent the lawyer from representing themselves and then disclosing information. [They] would argue for confidentiality, and presumably Trump would say something like—and Cipollone might agree—’Well, since we don’t think that Cipollone could ever have been called as a witness in the trial because we don’t think anybody could be called as a witness in a trial, because of executive privilege.’ Because they have this absurdly large, capacious, blanket conception of privilege, I can imagine how they could say: ‘Well since he could never be called, he isn’t really a conflict of interest.’ But all that would boil down to is saying, ‘Well if a lawyer is in the room and sees the president committing crimes and constitutional violations, by virtue of asserting privilege, we are saying that the lawyer would never have to be required to disclose any of that problematic conduct. And that’s what the whole fight is about between the executive and the legislative branch right now, right? So I guess what I’m trying to say is, I can imagine a variety of dodges that might be offered to suggest that Cipollone is not in conflict of interest and in breach of his duties of candor to the tribunal. But I don’t think that they would be successful. So that is why I say yes. I think that if he witnessed what Bolton said he witnessed, and given what he said in the course of this trial, he could be disbarred.

As of the time of our conversation, Senator Murkowski went out as a ‘no,’ and people are fully expecting—there’s been some mixed reporting about when it will end—but—

It’s been clear from the beginning and pretty much consistently straight through, depending on whether you are willing to believe that any of the senators who were supposedly on the fence, if you were willing to believe that they really were on the fence as opposed to just saying it, and obviously I’m skeptical, it’s been pretty clear at the time that we are speaking that one way or another, the Republican-controlled Senate is going to bring this to bring the final acquittal vote to the table as quickly as possible without hearing additional witnesses and vote to acquit the president. Now, it ain’t over till it’s over. So, could somebody have a revelatory moment of conscience and decide to deviate from that playbook? Sure, but it doesn’t look like it right now.

So, the cake looks pretty baked?

Yeah, well, the cake, I think, came pre-baked.

[Editor’s note: The GOP-controlled Senate voted to exclude witness testimony and evidence by a 51-49 vote some two hours after this interview, with only Senators Mitt Romney and Susan Collins breaking ranks.]

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