The day after the House Jan. 6 committee wrapped up its most recent public hearing, all eyes turned to Washington’s federal courts last Friday. Not only did a jury convict former Trump White House adviser Steve Bannon of two counts of contempt of Congress on that day, but eagle-eyed observers also noticed another, more cooperative Trump World figure exiting the courthouse: Marc Short, former chief of staff to former Vice President Mike Pence.
Soon after, reports emerged that Short and another former Pence aide, counsel Greg Jacob, testified last week before a federal grand jury investigating the events surrounding the Jan. 6 attack. And on Tuesday night, The Washington Post reported that grand jury has been questioning witnesses, including but apparently not limited to Short and Jacob, about their “conversations with Trump, his lawyers, and others in his inner circle who sought to substitute Trump allies for certified electors from some states Joe Biden won.”
The revelation that the Justice Department is investigating then-President Donald Trump’s actions comes as some of his aides are working to put visible distance between themselves and their former boss. And perhaps no group highlights that trend more clearly than the alumni of the Trump White House counsel’s office.
For starters, when Short was seen leaving the courthouse last Friday, a second recognizable Trump alum was at his side: Emmet Flood. Flood, a partner with Washington’s storied Williams & Connolly, has had a fascinating career. One of then-President Bill Clinton’s lawyers during his impeachment, Flood later worked in the White House Counsel’s Office during George W. Bush’s administration. And most recently, before Flood was Short’s lawyer, he served as the White House’s head lawyer for special counsel Robert Mueller’s Russia investigation and was even briefly acting White House counsel until Pat Cipollone arrived. When he left the White House in June 2019, Trump was effusive in his praise, tweeting that his “friend” Emmet had done a “GREAT JOB.”
But these days, Flood’s nowhere near the former president’s defense. Instead, he’s representing one of Trump’s most prominent, credible accusers. Although Short, unlike Jacob, was not a live witness during the Jan. 6 hearings, numerous clips of his testimony were shown to the public. And Short, like Jacob, was extremely damaging to Team Trump: He told investigators that Pence never believed he could change the result of the 2020 election — and that Pence communicated this to Trump repeatedly and consistently.
Short also testified that he shared Pence’s view, communicated that to then-Trump chief of staff Mark Meadows — and that whatever Meadows might have told Trump or others, he told Short he agreed on at least a couple of occasions. Moreover, Short revealed to the Jan. 6 committee that as Pence’s disagreement with Trump “became more public,” Short was concerned “the president would lash out in some way,” so on Jan. 5, 2021, he notified the head of Pence’s Secret Service detail.
Those details —and others, including Short’s recollection of the now-infamous Jan. 4 meeting at which Trump lawyer John Eastman acknowledged to Trump, with Short, Jacob and Pence looking on, that his plan for Pence to reject certain slates of electors would violate federal law — are likely to be shared with the grand jury as well. And Flood, who was a dogged advocate for Trump with regard to the Mueller investigation, is standing by Short, not Trump.
Flood is hardly alone, however, among alumni of the Trump White House counsel’s office in breaking with Trump. And unlike Flood, who has signaled where he stands through the company he keeps (or the clients he represents), others have taken sides with their words.
Take Ty Cobb, who initially oversaw the White House’s response to the Mueller investigation and was replaced by Flood. When Trump all-but-declared he would seek the presidency again in 2024, Cobb gave an unsparing statement to NBC News, explaining that any declaration of Trump’s candidacy “serves no interest but his self-defeating and overwhelming need for relevance, attention and money. Such an announcement also does not inoculate him from criminal investigation.” And lest anyone be confused about why Trump himself should be criminally investigated, Cobb — a former federal prosecutor — enumerated Trump’s potential crimes on CNN. And last, but not least, there is Cipollone, another former White House counsel. He could have litigated with the Jan. 6 committee over any subpoena for his testimony. After all, as the White House’s chief lawyer, Cipollone’s stated concerns about executive and attorney-client privilege were neither speculative nor negligible. Had he chosen that path, it’s not clear that Cipollone would have prevailed on the merits. But he likely would have succeeded in delaying any final decision until after January 2023, when the Jan. 6 committee will expire unless Democrats retain a House majority. But nonetheless, Cipollone gave an hourslong, taped interview to the committee, and it included multiple excerpts during the last hearing. In perhaps the most memorable bit, Cipollone confirmed everyone on the White House staff wanted people to leave the Capitol on Jan. 6. When asked, however, whether anyone within the White House did not want people to leave the Capitol, Cipollone stumbled and invoked privilege. The implication was clear: Cipollone, who would not discuss conversations with Trump himself on privilege grounds, knew Trump did not want the attack to stop. And who was the lawyer at Cipollone’s side for that devastating revelation? None other than Michael Purpura, a deputy White House counsel during the Trump administration. It’s true that Cobb, who critiqued Trump publicly well before Jan. 6, is the only former Trump White House lawyer to so publicly and forcefully bash him. But Flood, Cipollone and Purpura’s roles in the investigations are telling — and maybe another illustration of Jan. 6 committee Vice Chair Liz Cheney’s tease that “the dam has begun to break.” Will others join them? Watch this space — or that grand jury.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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