Former Overstock CEO Patrick Byrne, who had a Dec. 18, 2020, meeting at the White House with then-President Donald Trump, Trump’s personal lawyer Sidney Powell and former national security adviser Michael Flynn, testified to the House Jan. 6 committee behind closed doors Friday for nearly eight hours. Byrne had already acknowledged that at that meeting, he, Flynn, Powell and Trump discussed official actions Trump could take to reverse the 2020 presidential election. Apparently in the absence of White House staff, they discussed Trump ordering the military to seize voting machines, Trump replacing the acting attorney general if he refused to cooperate with Trump’s plan and Trump making Powell, and not Rudy Giuliani, his top lawyer tasked with overturning the election.
The meeting is an example of inappropriate blurring of lines between partisan politics and official capacity work of White House staff.
As professor Claire Finkelstein and I observed in December 2020, the actions contemplated at that meeting very likely constitute criminal sedition and would have been sedition if carried out. And the meeting itself is an extreme example of a problem I pointed out shortly after leaving former President George W. Bush’s White House in 2007: the inappropriate blurring of lines between partisan politics and official capacity work of White House staff.
In the case of the Dec. 18, 2020, meeting, apparently, nobody from the White House staff was in the room as Trump and these three individuals began discussing a plan for official action that would have ended democracy as we know it. According to Byrne’s own blog post on a right-wing website, “of that first 30 minutes we had alone with the President, most of the conversation was among the President, Mike, and Sidney.” Then, according to Byrne’s post, “three lawyers appeared together. They did not introduce themselves, and stood huddling in the back of the Oval Office, listening.”
Byrne wrote that White House chief of staff “Mark Meadows and someone else joined us by speaker phone.” He wrote, “Eventually the lawyers in the back began muttering things to make their displeasure and disagreement evident,” at which point he claims to have told Trump, “Sir, again, CEO to CEO, you are not being served well by those around you in the White House. I’ve gotten to know staffers in your White House, and they tell me they are being told that leadership here is telling them to get you to concede.”
The meeting, according to several witnesses, deteriorated into screaming between these three political operatives and the White House lawyers. White House Counsel Pat Cipollone, who testified to the Jan. 6 committee for seven hours on July 8, said during his testimony, “I was not happy to see the people who were in the Oval Office,” and he told the committee that when he saw Byrne, he asked, “Who are you?” He said he did not think any of these people — none of whom was a federal employee and only one, Flynn, had ever worked for the Trump administration — was providing the president with good advice and didn’t know how they had even gotten into the Oval Office.
To Cipollone’s point, what were these three people, all private citizens, doing in the White House discussing with the president official actions he might take with respect to that election — or any election? Presidents frequently get political advice from people outside the government, but official capacity advice for the president is supposed to come from federal employees, including the White House staff.
I expressed concerns about excessive intrusion of partisan political advisers into official White House functions during several recent presidencies in a book I wrote in 2008, in a 2010 op-ed in The New York Times and in 2011 congressional testimony. As worrisome as this mixing of partisan politics and official business was during the Bill Clinton, George W. Bush and Barack Obama years, there was at least one common denominator: White House officials advising the president on partisan politics were also White House employees, subject to statutes, ethics rules and other laws applicable to federal employees. These laws include the Hatch Act, which prohibits a federal employee from using official position or government resources for partisan political purposes and criminalizes anyone ordering or coercing a federal employee to engage in partisan politics.
At least during those administrations, people outside the government who worked only for the president’s political campaign weren’t organizing White House meetings where they, rather than White House staff, advised the president on official actions. There’s one other key distinction: Partisan politics interfaced with official White House policy, sometimes inappropriately, but at least the mischief was before elections. The focus was not on plotting to overturn elections once they were over. One would hate to think of the chaos that would have ensued in 2000 — when, unlike in 2020, there were legitimate questions about who had won — if President Clinton and Vice President Al Gore had been advised by the likes of Sydney Powell, Michael Flynn and Patrick Bryne, that is, by people who had no business being in the Oval Office advising the president on his official duties in the first place.
During the Clinton, Bush and Obama years, White House officials advising the president on partisan politics were also White House employees.
There’s a reason why in every other administration the president received advice on his official acts as president from White House staff and other federal employees. Their sworn loyalty is to the United States, and only to the United States, and they are bound by federal ethics rules and statutes designed to make sure their loyalty runs only to the United States. The Anti-Deficiency Act specifically prohibits federal employees from “accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.” That precludes accepting voluntary services of outsiders to advise the president on what he should do in an official capacity about a federal election. And, no, the president losing his bid for re-election is not an emergency that allows for an exception to this rule.
The reason for the rule is simple, and directly related to what happened at that December 2020 meeting: Outsiders who voluntarily organize a White House meeting to advise the president are not subject to the laws, or the oath, that bind federal employees, including the White House lawyers who reportedly stood in the Oval Office being humiliated in front of the president by Byrne, Flynn and Powell. Most violations of the Anti-Deficiency Act don’t involve volunteers orchestrating insurrection and sedition from inside the White House, but this appears to be a case where it did. Having too many partisan political operatives in the White House has been a problem under several administrations, although Trump took mixing politics with official business to dangerous extremes, including by allegedly ordering and coercing federal employees to support his campaign. While Trump’s predecessors in the Oval Office certainly took advice from partisan operatives, many of the partisan operatives Trump allowed into the White House to advise him weren’t on the White House staff. Recognizing the need for more separation of partisan politics from the affairs of state, Congress should tighten up laws on partisan political activity by federal employees and the involvement of outside political operatives in official meetings as I suggested in my testimony in 2011. We also need a federal government, including a Justice Department, that enforces the laws we already have, including the Hatch Act, the Anti-Deficiency Act and, of course, laws against insurrection and sedition. At the same time, evidence suggests that what happened at that December 2020 Oval Office meeting was a criminal seditious conspiracy and the participants, including Trump, should be charged with just that.
Richard W. Painter
Richard W. Painter was the chief White House ethics lawyer from 2005 to 2007 under President George W. Bush. He is the S. Walter Richey Professor of Corporate Law at the University of Minnesota and is a graduate of Harvard College and Yale Law School. 
