Former White House counsel, deputy counsel subpoenaed in DOJ’s Jan. 6 probe

(CNN) – The Justice Department is escalating its investigation into the Jan. 6 Capitol attack, with CNN learning of new subpoenas to former White House counsel Pat Cipollone and former deputy counsel Patrick Philbin.

Cipollone and Philbin are the highest-ranking White House officials to be subpoenaed so far in the probe.

“This is probably bad for former President Trump,” said Rep. Adam Kinzinger, R-Ill., a member of the House Jan. 6 select committee.

Prosecutors are already deep into their investigation of plans from Trump allies to overturn the 2020 election.

Two top aides to former Vice President Mike Pence, Marc Short and Greg Jacob, appeared before a grand jury last month.

Subpoenas have already been served to several people who schemed to create fake slates of electors saying Trump won the 2020 election in several swing states.

Earlier this summer, FBI agents seized lawyer John Eastman’s phone and raided former DOJ official Jeffrey Clark’s home.

Cipollone’s subpoena is significant because he was close to the president and in the West Wing on Jan. 6, 2021.

Cipollone sat for several hours of a closed-door deposition with the Jan. 6 House select committee, careful not to divulge any conversations directly with Trump.

Former prosecutor Elie Honing said those executive privilege concerns could prove to be a hurdle for Justice Department prosecutors.

“Donald Trump might try to step in and claim executive privilege in front of a grand jury,” Honing said. “You can claim executive privilege, but there is a difference between claiming executive privilege and actually winning on executive privilege. This is exactly what happened in the Richard Nixon tapes case back in 1974.”

Nixon’s tapes were ultimately ordered released by the Supreme Court.

Meanwhile, the Jan. 6 House committee was blindsided by revelations of more missing text messages from government phones.

CNN has learned the Defense Department wiped the phones of top departing Defense Department and Army officials at the end of the Trump administration, deleting any texts that might have existed from key witnesses in response to the Capitol attack.

When asked if the House Jan. 6 committee was aware of the deleted Defense Department records prior to Wednesday, Rep. Zoe Lofgren, D-Calif., a committee member, said: “I do not believe so. I was not, which is another concerning matter – that this was not disclosed to us by the Department of Defense.”

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