The New York Times’s Maggie Haberman and Glenn Thrush are out with the latest hot goss from Trumpworld’s legal team, and it is delicious as always.
“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” former Trump White House lawyer Eric Herschmann emailed Trump’s personal lawyers Evan Corcoran and John Rowley regarding Trump’s advisor turned “in-house counsel” Boris Epshteyn.
“When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades,” Herschmann went on disgustedly.
Herschmann famously testified to the January 6 Select Committee that he told John Eastman to “get a great fucking criminal defense lawyer, you’re gonna need it.”
And he showed the same sharp elbows in his dealings with Trump’s counsel regarding testimony to Justice Department prosecutors seeking to depose him about election interference by Trump and his circle. The Times reports that Herschmann spent weeks trying to get clarity from Corcoran and Rowley about a specific invocation of executive or attorney-client privilege by the former president.
After ignoring Mr. Herschmann or giving him what he seemed to consider perplexing answers to the requests for weeks, two of the former president’s lawyers, M. Evan Corcoran and John Rowley, offered him only broad instructions in late August. Assert sweeping claims of executive privilege, they advised him, after Mr. Corcoran had suggested that an unspecified “chief judge” would ultimately validate their belief that a president’s powers extend far beyond their time in office.
If you’ve been following this saga closely, it might ring familiar bell, since this airy gesture in the general direction of privilege seems to have been what landed Steve Bannon and Peter Navarro in the Justice Department’s crosshairs.
When Bannon got subpoenaed by the January 6 Select Committee in September of 2021, his lawyer Robert Costello tried to get Trump to make some kind of formal invocation of privilege. All he got was a letter from Trump’s attorney Justin Clark instructing Bannon to “where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the subpoena” and “not produce any documents concerning privileged material.” That was clearly not an invocation of executive privilege, although Costello and Bannon tried mightily to claim that it was, refusing to engage with the Committee at all.
On October 16, Clark made it even more clear that the former president wasn’t going to the heavy lifting, effectively leaving his minions to twist in the wind:
Just to reiterate, our letter referenced below [the October 6 letter] didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege – if you believe it to be appropriate – exist and are your responsibility. If you haven’t already I’d encourage you again to contact counsel for the committee to discuss it further.
Navarro tried the same trick, although he did it without a lawyer and seems to have relied on some kind of verbal invocation of executive privilege, as US District Judge Amit Mehta described in an order last week denying Navarro discovery on the Justice Department’s internal deliberations as part of a selective prosecution defense.
Bannon, who was represented by Evan Corcoran, was convicted of two counts of contempt of congress in July. And Navarro, who is represented by Rowley, is currently mounting most of the same defenses to the exact same charges. (Define insanity?)
But Herschmann, who is not an idiot, told Corcoran his cockamamie theory of executive privilege for Bannon was bullshit, and he wasn’t going to tell the Justice Department to get bent based on Corcoran’s stupid legal theories about getting bailed out by some mythical higher court.
“I will not rely on your say-so that privileges apply here and be put in the middle of a privilege fight between D.O.J. and President Trump,” Herschmann emailed Corcoran. And when Corcoran tried to call him to discuss it, he said he wasn’t going to get himself involved in a witness tampering charge, so Corky could put anything he had to say in writing, TYVM.
And furthermore Epshteyn was, in Herschmann’s opinion, “not in a position or qualified to opine on any of these issues” and was furthermore under subpoena in the Georgia state investigation of electoral interference, “should not in any way be involved in trying to influence, delay or prevent my testimony.”
Finally, on the eve of his testimony, Trump’s crackerjack legal team sought a court order invoking privilege, and Herschmann’s testimony was postponed, the Times reports.
In the meantime, Corcoran and Christina Bobb, another Trump lawyer plucked from the white shoe law firm of One America News Network, seem to have made themselves witnesses in a potential criminal prosecution of their client by attesting verbally and in writing to the FBI that Trump had handed over all the classified documents in his possession — which he hadn’t.
The Times reports that Bobb is under federal investigation and has hired criminal defense lawyer John Lauro to represent her. Corcoran, confident that he’s in the clear, has not yet lawyered up.
And if you can’t trust that guy’s judgment …
Meanwhile, Epshteyn appears to have engaged in an extended colloquy with other lawyers discussing the rampant illegality of the proposed fake electors scheme, and recently had his phone seized by the FBI pursuant to a warrant.
It seems pretty unlikely Eric Herschmann’s taking Boris Epshteyn’s call right now. But if he did, we have a fair guess what advice he’d give.
Trump’s Team of Lawyers Marked by Infighting and Possible Legal Troubles of Its Own [NYT]
Liz Dye lives in Baltimore where she writes about law and politics.