Here is my new essay on Law360, with the story of Stefan Passantino's representation of Cassidy Hutchinson as a cautionary tale for other lawyers.
Jan. 6 Panel Transcripts Highlight Attorney Ethics Issues
Cassidy Hutchinson's testimony before the U.S. House of Representatives Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol appears to have inspired a criminal investigation by special prosecutor Jack Smith. As recently reported by The Washington Post,[1] an extensive new grand jury subpoena has been served on a number of Trump's associates, seeking two dozen categories of information, some of which has not previously been requested. One new question, according to the Washington Post, "asks recipients to reveal if anyone other than themselves are paying for legal representation," which appears to follow up on Hutchinson's testimony that her attorney — who was being paid by Save America PAC, a PAC affiliated with former President Donald Trump — had attempted to steer her testimony away from implicating Trump's coterie, at the expense of telling the full story.
The select committee's final report[2] noted that lawyers "receiving payments for the representation from a group allied with President Trump" may have engaged in "efforts to obstruct the Committee's investigation." The new subpoenas now signal the special prosecutor's concern that some of these efforts may have crossed into conduct that merits further investigation.
In the meantime, Hutchinson's account of her experience demonstrates how easily a lawyer's own political agenda can shape a witness's testimony. Hutchinson ultimately provided considerable information about Trump's behavior before, during and after the Capitol insurrection, but it did not come easily.
The former aide to chief of staff Mark Meadows was represented at three committee interviews by Stefan Passantino, former ethics counsel[3] in the Trump White House and an attorney for the Trump campaign[4] in a 2020 Georgia election challenge. As Hutchinson later alleged, Passantino attempted to convince her to avoid giving testimony damaging to Trump, with the admonition "the less you remember, the better."[5] Only after retaining a new attorney was Hutchinson able to describe everything she observed about White House activity surrounding the Jan. 6 attack.
The special prosecutor's subpoenas now suggest that other witnesses' testimony may have been influenced by lawyers being paid by Trump-linked organizations. Following the release of Hutchinson's complete interview transcripts, appended to the select committee's final report,[6] we can see some of the ways in which Passantino sought to guide her testimony, as she put it, "to focus on protecting the president."[7] According to the report, Passantino instructed Hutchinson to feign ignorance and poor
memory to avoid implicating Meadows "and the boss."
Realizing that Passantino's advice had led her into possibly committing perjury — by telling "the Committee that she did not recall facts when she actually did recall them" — Hutchinson ultimately sought new counsel who helped her correct her misstatements and provide a thorough account of the Jan. 6 events.
In Hutchinson's first three interviews — on Feb. 23,[8] March 7[9] and May 17, 2022[10] — Passantino repeatedly interrupted the committee's questioning to deflect or circumvent testimony potentially damaging to the Trump faithful. He interceded to narrow questions, request rephrasing and advise Hutchinson to confine her answers. He instructed her to "be careful that you are limiting to what you know," stick to "specific knowledge," give only "your observations to the extent that you have an observation," and to say only "what you know from specifics, if you can recall."
That might have seemed like apt maneuvering for a party at risk in litigation, but Hutchinson was simply a witness, with no personal stake in the investigation. Rather than protecting Hutchinson, it appears that Passantino was attempting to limit the select committee's access to information. Hutchinson later testified about his assurance that she could safely evade the select committee's questions because "they don't know what you can and can't recall."[11] She eventually rejected that tactic, believing that it had led her into falsely claiming memory lapse. "'I don't recall' is not a lie in Stefan's" thinking, she observed.
On several occasions, Passantino interrupted the committee's questioning to caution Hutchinson regarding discussions she overheard between Meadows and White House attorneys Pat Cipollone and Eric Herschmann. He said, "[W]e are still asserting a privilege ... to attorney-client advice." Hutchinson herself had no attorney-client relationship with either lawyer, however, meaning that no confidences of hers would have been compromised by an extensive answer. Thus, the privilege could only have been raised on behalf of Meadows or someone else whom Passantino wanted to protect.
Passantino also intervened just as Hutchinson was describing Trump's enthusiastic response — related to her by Meadows — to the mob's "hang Mike Pence" chant. "I don't want to ... shape what you're saying," he maintained, right before he proposed a less damning narrative from his own notes, "just for the accuracy of what you're saying."
And so it went in all three interviews, with Passantino intermittently correcting Hutchinson's testimony, advising her against speculating — although speculation is permissible in an interview or deposition — and asserting Meadows's attorney-client privilege. Hutchinson strived to provide full answers, despite Passantino's interventions. He acknowledged at one point that it "pains you not to know the answer to questions," but he nevertheless continued urging her to say she didn't know.
Passantino told CNN that he "represented Ms. Hutchinson honorably, ethically, and fully consistent with her sole interests as she communicated them to me."[12]
Nonetheless, Hutchinson's later representation by Atlanta attorney Joseph "Jody" Hunt could not have been more different.[13] During Hutchinson's fourth interview on June 20, he spoke only to encourage her to expand on her testimony or provide further details of the events.[14] He did not assert attorney-client privilege, even when Hutchinson testified to interactions among Cipollone, Herschmann, Meadows and others. At the end of the committee's questioning, Hunt tactfully said that "Ms. Hutchinson does have some things that she would like to clarify from her prior testimony, to elaborate on in a way that she thinks will be helpful to the committee and give some context to that and, in some respects, to correct."
Under Hunt's direction, Hutchinson made dozens of additions and corrections to her earlier, Passantino-advised testimony, adding details, both great and small, that she had previously downplayed, omitted or claimed to have forgotten. Over more than 50 pages of interview transcript, Hutchinson informed the select committee of White House plans for the Jan. 6 rally, which included a march on the Capitol and objections to certifying the election. She related Meadows' appreciation of Trump's tweeted announcement, saying that "[i]t looks like we're going to pull this off," with "Trump staying in office." She also testified to Meadows' warning that "things might get real, real bad on" Jan. 6.
Given the opportunity to provide unencumbered testimony, Hutchinson described events in the White House on Jan. 6, such as discussions about delaying the certification vote under John Eastman's theory of vice presidential prerogative. She described what she had heard of Trump's agitated insistence on joining his followers on their march to the Capitol, in what would have been "what the Secret Service refers to as an 'off-the-record' movement," according to the final report. She related Meadows' reaction to Trump's approval of the "hang Mike Pence" chants: "He thinks Mike deserves it. He doesn't think they're doing anything wrong." And much more.
The final report referred to Hutchinson's revelations as raising "substantial concerns regarding potential efforts to obstruct its investigation, including by certain counsel (some paid by groups connected to the former President) who may have advised clients to provide false or misleading testimony to the Committee," which would be a federal crime if it occurred.[15]
As the select committee observed, it is a felony under Title 18 of the U.S. Code, Section 1512 to corruptly persuade a witness in an official proceeding to withhold testimony, or to engage in misleading conduct with the intent to influence or prevent a witness's testimony.[16] Hutchinson testified that Passantino repeatedly urged her to withhold information from the select committee, even when she had a good recollection of the events. Regarding a crucial incident in the presidential limousine, for example, he reportedly told her, "No, no, no, no, no. We don't want to go there. We don't want to talk about that," explaining, "[t]he less the committee thinks you know, the better, the quicker it's going to go. ... And then you're going to be taken care of."[17]
And even when conduct does not amount to witness tampering, urging false testimony could still violate Rule 3.4 of the American Bar Association Model Rules of Professional Conduct,[18] under which a lawyer is prohibited from "unlawfully obstruct[ing] another party's access to evidence," or counseling "a witness to testify falsely."
It is too early to know whether any lawyer will face criminal or ethics charges in relation to the select committee's investigation, given the numerous political, legal, pragmatic, evidentiary and resource-allocation considerations involved in the decision. The special prosecutor's assignment is vast in scope,[19] covering not only the Jan. 6 insurrection, but also the efforts to overturn the 2020 presidential election, and even the retention of classified documents at Mar-a-Lago. In that context, the possible interference with one witness's testimony may be insufficiently important to merit a charge of witness tampering, especially given the evidentiary requirement of proving corrupt intention.[20] Passantino would surely argue that Hutchinson misunderstood his instructions, which were meant only to keep her testimony short and sweet.
The Select Committee, on the other hand, obviously took Hutchinson's allegations extremely seriously. Its final report sharply noted that "the U.S. Department of Justice and the Fulton County District Attorney's Office have already obtained information relevant to these matters, including from the Committee directly," adding that it "urge[d] the Department of Justice to examine the facts to discern whether prosecution is warranted."
Because her "loyalties [were] with the truth"[21] rather than with "Trump World," Hutchinson's one apparent objective was to inform the select committee of everything she knew about the events surrounding Jan. 6. She ultimately believed that her Trump-paid lawyer made that impossible, and that only a new attorney, dedicated solely to her interests, would enable her to tell the whole truth.
We have legal ethics rules for exactly that reason. Model Rule 1.8(f) places strict conditions[22] on accepting payment from someone other than the client, requiring informed consent[23] and providing that there must be no "interference with the lawyer's independence of professional judgment."
According to Hutchinson, Passantino declined to tell her the source of his funding.[24] And, as we have seen, the payment by a Trump-affiliated PAC at least appears to have affected his representation, gearing it toward protecting Trump, Meadows and others besides his client.
The Save America PAC spent millions of dollars on legal consulting in 2022, in over 150 payments to dozens of law firms.[25] The Washington Post reported[26] that some of the payments were for the representation of witnesses such as Hutchinson, although the breakdown is unknown. The special prosecutor's subpoenas raised questions about several other Trump-affiliated groups[27] that may also have been funding witnesses' attorneys.
Providing legal counsel for witnesses who have been caught up in a congressional investigation may be nothing more than simple generosity, relieving them of a potentially ruinous financial burden. Then again, it might also be an effort to control and limit their testimony, making sure that the higher-ups will be protected from damaging revelations.
Although it may often seem like a good idea to accommodate a funding source, the consequences of getting it wrong can be devastating. A client's objectives may at first appear superficially aligned with his or her benefactor, but it is always a mistake to assume that their underlying interests — what they actually want to get out of the representation — actually coincide.
The ethical rule governing third-party payment, after all, is titled "Conflicts of Interest: Current Clients - Specific Rules,"[28] which should be enough to put lawyers on notice that there is always a lurking conflict when someone other than the client is paying the fee. Disclosure must therefore be painstaking and extensive, taking nothing for granted about the client's goals, which of course must come first.
Conflicted representation is a problem in any setting, but it is especially perilous in the context of a congressional or criminal investigation, when it may too easily drift to the wrong side of the law.
The special prosecutor now appears poised to determine whether other witnesses have faced the same dilemma as Cassidy Hutchinson — and if so, what should be done about it.
Steven Lubet is the Williams Memorial Professor of Law Emeritus at the Northwestern University Pritzker School of Law. He is the co-author of "Modern Trial Advocacy" and other books.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.washingtonpost.com/national-security/2023/01/11/trump-subpoena-jan6-campaign-officials/.
[2] https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/html-submitted/index.html.
[6] https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/html-submitted/index.html.
[7] https://s3.documentcloud.org/documents/23506040/cassidy-hutchinson-january-6-transcript-september-14-2022.pdf.
[11] https://www.cnn.com/2022/12/22/politics/read-cassidy-hutchinson-jan-6-transcripts/index.html.
[15] https://www.law.cornell.edu/uscode/text/18/1512.
[16] https://www.law.cornell.edu/uscode/text/18/1512.
[19] https://edition.cnn.com/2022/11/18/politics/justice-department-trump-special-counsel/index.html.
[20] https://www.justice.gov/archives/jm/criminal-resource-manual-1729-protection-government-processes-tampering-victims-witnesses-or.
[24] June 20 interview, pp. 154-55.
[25] Browse Disbursements | FEC, https://www.fec.gov/data/disbursements/?data_type=processed&committee_id=C00762591&two_year_transaction_period=2022&min_date=01%2F01%2F2021&max_date=12%2F31%2F2022&disbursement_description=Legal+Consulting.
[26] https://www.washingtonpost.com/national-security/2022/12/05/trump-witnesses-legal-bills-pac/.
[27] https://www.washingtonpost.com/national-security/2023/01/11/trump-subpoena-jan6-campaign-officials/.
[28] https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules
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