Trumpland Lawyers Jockeying Madly To Get Out Of Path Of Coming Sh*tstorm Tornado

At least the smart ones are, anyway.

Trumpland lawyers are a motley crew of Brooks Brothers fascists, B-listers of flexible integrity, and craven MAGA hacks. Their constant sniping at each other and leaks to the press are always good for a laugh, and often serve as a window on the former president and his many, many legal problems.

It is very funny to see former White House lawyer Eric Herschmann, who is squarely in the first category, take a righteous crap on B-listers Evan Corcoran and John Rowley, who currently represent Trump in Trump's stolen document disputes, and Trump lackey Boris Epshteyn, who is an absolute hack despite having a JD from Georgetown.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Herschmann told Corcoran and Rowley over the summer in emails reported by the New York Times . “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.”

Why, yes, Herschmann is the same guy who threatened to beat up the Overstock.com weirdo and Mike Flynn during the infamous December 18, 2020, Oval Office showdown and testified to the House January 6 Select Committee that he'd told John Eastman to get a "good fucking criminal defense attorney."

Eric Herschmann may be an asshole, but he's not wrong. Eastman and Epshteyn, who were part of a long email chain where they discussed the illegality of their fake electors plan and speculated about siccing mobs on swing state legislatures in an effort to get them to certify Trump electoral slates, are smack in the middle of about five investigations of electoral interference in 2020. They also lost their phones recently when the nice FBI men showed up with a piece of paper signed by a federal judge saying GIVE IT.

As the Times reports, Herschmann received a subpoena early in the summer from one of the federal grand juries investigating the events leading up to the January 6 Capitol Riot. Corcoran and Rowley told him to make a generalized claim of executive privilege and stonewall, with Corcoran promising that some unspecified “chief judge” would later validate a wildly expansive theory of executive privilege.

Corcoran was at the time making just such a claim on behalf of Steve Bannon, who was charged with contempt of Congress after refusing to show up at all or produce a single document in response to the January 6 Select Committee subpoena. In fact, Trump's lawyers never made a formal invocation of executive privilege — which would have been laughable on its face, since Bannon got fired from the White House in 2017 — and simply instructed him 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 effectively left Bannon twisting in the wind, which is how he wound up convicted on both counts. And now Rowley is making a similar argument on behalf of Peter Navarro, who didn't even get that generalized hand wave in the direction of privilege in writing.

Over the summer, Herschmann told Corcoran his defense of Bannon was bullshit, and refused to have a phone call about it, making pointed reference to statutes pertaining to witness tampering. Eventually, the Trump team blinked and made a formal invocation of privilege with the court to shield Herschmann's testimony, since he said without one he was going to answer every question posed by prosecutors.

Independent journalist Marcy Wheeler reads the Times story as a warning to fellow Brooks Brothers fascists Pat Cipollone and Pat Philbin, veterans of the Trump White House Counsel's Office, who testified to the grand jury on July 8 and invoked privilege without a formal intervention by Trump.

And whatever else this story conveys, it tells anyone who has already testified and invoked privilege that Chief Judge Beryl Howell has recently gotten, and will be deciding on, the first known formal invocation of privilege. Howell will be asked to weigh not just whether a White House Counsel can invoke Executive Privilege in a criminal investigation implicating the President, a topic about which Bill Clinton would have a lot to offer. She’ll also be asked, generally, about the privilege claims lawyers are making about an event — January 6 — that the Supreme Court has already decided Executive Privilege, at least, must be waived.

If Howell rejects Trump’s invocation of privilege with Herschmann, then any claims of Executive Privilege that the two Pats made in their one-two testimony on September 2 would fail as well.

That's a very interesting theory, and, whether or not it's the reason we're reading these emails now, it gets at something important from the Trump era. Namely, when the leader of your party is a huge criminal, it puts everyone around him in legal jeopardy, with the resultant side effect that they spend half their time leaking to reporters in an effort to position themselves on the right side of whatever crazy shit is coming down the pike.

Hence two more Maggie Haberman stories this week — they all lead with her byline, although sometimes she brings along a friend — where this crew tries to get as far away from the Trump Archives shitstorm as possible.

Last week, the Times   reported that Philbin told the Archives in September that the boxes of White House records stored at Mar-a-Lago "included only nonclassified material like newspaper clippings." Which ... they did not.

This is not a great look for Philbin , but, see, he was only relaying what he'd been told by Mark Meadows!

Mr. Philbin indicated to [Archives lawyer Gary] Stern that the information was based on what Mr. Trump’s final White House chief of staff, Mark Meadows, believed to be the contents in the boxes, the people said. Mr. Stern memorialized his own description of the exchange in an email, one of the people said.

It is unclear when the archives told the Justice Department about the conversation. But it is part of the evidence gathered by investigators showing how Mr. Trump’s representatives gave government officials misleading information about what Mr. Trump had taken with him when he left the White House.

Looks like someone doesn't want to wind up in the shit with Corcoran and OAN lawyer Christina Bobb, who told the FBI they'd done a diligent search and Trump wasn't hoarding any more classified docs, and are now squarely in the DOJ's sights. Kinda makes sense now that, after the first tranche of documents handed over to the Archives turned out to have all kinds of presidential records and classified stuff, Philbin and Cipollone were too busy washing their hair to take the Archivist up on the invitation to come to DC and look over it to determine if Trump wanted to make any privilege assertions before it got handed over to the Justice Department, huh?

And speaking of Trump lawyers who want to put as much real estate between themselves and this Archives fiasco as possible, Haberman reported last night that Eric Herschmann met with Trump in late 2021 and "sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material."

"Mr. Trump thanked Mr. Herschmann for the discussion but was noncommittal about his plans for returning the documents, the people familiar with the conversation said," according to Haberman.

You hardly need to be a Kremlinologist to parse that particular nugget!

In summary and in conclusion, the smart lawyers, the ones who went to fancy law schools and got federal clerkships and haven't been marinating in sub-Murdoch media for 10 years, know what's coming, and they want no part of it. Look for that Haberman byline to get quite a workout.

[ NYT / Empty Wheel / NYT / NYT ]

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