Why a Passantino Disbarment Could Broadly Impact Law Practice

On March 6, Cassidy Hutchinson’s one-time lawyer, Stefan Passantino, was hit with a disciplinary complaint seeking his disbarment in Washington if an investigation upholds allegations that he betrayed his duty of loyalty to her and tampered with her testimony.

Hutchinson was a star witness before the House Jan. 6 committee after serving as White House aide to Mark Meadows, former President Donald Trump’s chief of staff.

This complaint matters just like the disciplinary complaints against Rudy Giuliani and John Eastman do. Passantino is charged, in effect, with ethical violations in trying to cover up the same presidential scheme to overturn the 2020 election that Giuliani and Eastman have been charged in disciplinary complaints with engineering.

Impact for Litigators

Passantino’s case also matters for reasons that go beyond Giuliani’s and Eastman’s. Their situations were unique, personally representing, as they did, a president.

Passantino, by contrast, is charged with disciplinary violations in connection with representing a witness in Jan. 6 committee interviews.

Thus, his role translates more easily to situations where ordinary litigators find themselves representing clients in depositions, advising them when it’s okay to say, “I don’t recall” and when it isn’t. Hence, should he be sanctioned, the consequences would reverberate across the profession.

Particularly noteworthy is that he may have been part of a more concerted effort to have lawyers working, as the committee’s report suggested, to obstruct its investigation.

The report speaks of attorneys who may have had “specific incentives to defend President Trump rather than zealously represent their own clients” because the lawyers were paid by Trump’s Save America Political Action Committee.

Passantino may have been one who was compensated that way. According to Hutchinson’s testimony to the committee, he initially evaded her question about who was paying him, but later let it slip that “Trump World” was the source.

If her unusually credible testimony stands up in a disciplinary investigation, Passantino’s reported evasion screams consciousness of guilt and conflict of interest. Hutchinson told the committee that he said to her during his representation that “[w]e just want to focus on protecting the President” and others in his orbit.

Nonetheless, Passantino has said that he represented Hutchinson “honorably, ethically, and fully consistent with her sole interests as she communicated them to me.”

White House Legacy

Passantino was formerly Newt Gingrich’s counsel and later, the number-two lawyer in the Trump White House counsel’s office. There he was responsible for policing ethical standards.

If prevention of violations was a goal, one might say that his White House mission was less than completely successful.

The complaint filed March 6 alleges, based upon Hutchinson’s testimony, that Passantino violated a “breathtaking” array of the DC Bar’s ethical rules.

To cite one example of his alleged misconduct and its consequences, Hutchinson testified that when she told Passantino she had overheard things that were said at an “unhinged” White House meeting on Dec. 18, he told her she did not need to answer questions on that subject—that she could say “I do not recall”—because other people were there who could testify about it, and the committee wouldn’t know what she actually recalled.

In fact, the committee was entitled to hear every witness’s evidence.

The Dec. 18 meeting reportedly featured shouting matches between White House counsel Pat Cipillone and others present, including former national security adviser Michael Flynn, who reportedly floated the idea of Trump declaring martial law. Mere hours after the meeting ended, Trump tweeted, “Big protest in D.C. on January 6th. Be there, will be wild!”

It’s not hard to see why what Hutchinson heard at that meeting would be of interest to the committee, and why her “not recalling” would be in Donald Trump’s interest.

At one break in her committee testimony, Hutchinson later testified, she privately told Passantino she had given false testimony. Falsely asserting a lack of recollection exposes one to prosecution for perjury or potentially, contempt of Congress.

According to Hutchinson’s testimony, Passantino expressed complete approval of her performance and told her that committee members did not know what she remembered.

Making History

There’s a strong whiff of history here. Passantino’s alleged advice to Hutchinson is reminiscent of direction that President Richard M. Nixon gave White House insiders during Watergate.

According to the transcript of an audiotaped 1973 meeting, the then-president told his White House counsel John Dean and White House chief of staff that if asked to testify about the scandal, “Just be damn sure you say, ‘I don’t remember, I can’t recall.’”

John Dean was ultimately disbarred in 1974 after pleading guilty to obstructing justice in his role as White House’s lawyer.

If, this year or next, an investigation sustains the serious ethical breaches alleged in the complaint against Passantino, and if disbarment is in his future, this modern-day former occupant of the White House counsel’s office will be living proof of philosopher George Santayana’s timeless observation, “Those who cannot remember the past are condemned to repeat it.”

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy. Its lawyers drafted the disciplinary complaint against Stefan Passantino, Aftergut among them.