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How Jack Smith Wants to Prove Trump’s Crimes

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It goes too far to say, as some commentators have, that Jack Smith’s immunity filing is his trial brief.

If this thing were ever to go to trial, such a document would focus more on the elements of the offense that Judge Chutkan would have jurors assess, which I laid out here. While there’s extensive discussion of the Electoral Count Act, particularly regarding the intentional exclusion of the President from it, there’s less discussion of how Trump’s lies impaired its function, the crime charged under 18 USC 371. While there’s a discussion of the intent behind the fake electors plot, there’s less discussion of how those fake certificates served to impair the function of counting the real certificates (a point Trump made in his post-Fischer supplement to his motion to dismiss the indictment on statutory grounds), something that would be key to proving the two 18 USC 1512 charges. There’s little discussion of the victims — 81 million Joe Biden voters — whose rights Donald Trump allegedly attempted to violate in the 18 USC 241 charge.

Jack Smith is not exactly telling us how he’d prove his case. Rather, he’s asking for permission to use certain kinds of evidence to do so.

There’s no telling how SCOTUS will respond to this (I’m particularly interested in the tactical decision to call the Brooks Brothers Riot, “a violent effort to stop the vote count in Florida after the 2000 presidential election,” in a filing that aims to persuade John Roberts, Brett Kavanaugh, and Amy Coney Barrett.) Prosecutors have raised the cost for Roberts et al, by laying out that their immunity argument basically argues that it is the job of the President of the United States to send mean Tweets eliciting violent threats against members of his own party.

Now that Trump got permission to submit a sur-reply, his team is likely to frame this entire argument anew, as they wanted to do from the start. Given what they’ve said, I would assume their 180-page brief will focus extensively on the chilling effect it would have to hold a former President accountable for almost getting his Vice President killed. Once they prove that, Trump’s lawyers have argued, the entire indictment must be scrapped, because grand jurors were exposed to immunized behavior.

On that point: It seems that the brief relies on immunized conduct that was not shared with the grand jury. This appears most obvious in the footnote where the government says that part of a conversation Mike Pence had with Trump on December 19 is official conduct, but they don’t plan to share it with jurors. A more interesting instance, however, is the reliance on Pat Cipollone’s testimony that, after he showed up to the January 4 meeting at which John Eastman attempted to persuade Pence to throw out legal votes, Trump “explicitly excluded him from” the meeting. Under SCOTUS’ guidelines, that conversation presumably shouldn’t have been presented to grand jurors, but it is powerful evidence that the January 4 meeting was not official business.

The most notable new evidence in the filing is another example. Minutes after Trump sent the Tweet targeting Pence during the riot, the brief describes, Person 15 (Nick Luna), rushed into Trump’s dining room to tell him that Pence had been taken to safety, only for Trump to respond, “So what?” Prosecutors are only using that evidence, they explain, to contextualize the Tweet Trump had just sent, to make it clear it was a private Tweet. “The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet.” Luna probably alerted Trump imagining he might take official action to protect his Vice President, so this would be an official act. Jurors will never hear that testimony, but we get to, as do John Roberts and his colleagues.

Mike Pence

Caveating that I expect Trump to throw the kitchen sink at the Pence issue, I think Smith does fairly well rebutting the presumption of immunity in Trump’s communications with Pence. That analysis relies heavily on the deliberate exclusion of the President from tallying the vote, supporting a conclusion that “it is difficult to imagine an occasion when a President would have any valid reason to try to influence” the certification of the vote (meaning relying on Trump’s discussions with Pence wouldn’t chill valid Presidential communications). It also relies heavily on Blassingame’s holding — one not explicitly adopted in SCOTUS’ immunity ruling — that a candidate for re-election is not entitled to presidential immunity. So, the filing argues, any discussions that Trump and Pence had about their re-election bid (the filing lists nine here) are not official.

[T]he Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period.

[snip]

Pence “tried to encourage” the defendant “as a friend,” when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant “recognize [the] process is over” even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects—for instance, whether the federal government should begin its logistical transition to prepare for a different Administration°°’—the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities.

Another thing prosecutors did is engage in a system of parallel citation, often citing what must be interview or grand jury transcripts along with passages from Pence’s book.

The brief doesn’t ever mention footnote 3, in which Chief Justice John Roberts, in an attempt to dismiss Justice Barrett’s concerns that excluding officially immune evidence would make it impossible to prosecute the bribery specifically mentioned in the Constitution, said that of course prosecutors could rely on “the public record.” (See Anna Bowers’ good piece on the footnote here.)

3 JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020)

For much of the Pence testimony on which prosecutors want to rely, that parallel system of citation makes clear, there is a public record, and was — even excerpted in the WSJ — months before prosecutors interviewed Pence. Again, prosecutors aren’t making the argument that that should change the calculus. But ultimately, this is an instance where one key victim of Trump’s alleged crimes went public even before prosecutors asked for his testimony.

I actually think where Jack Smith’s bid may fail is with three others: Eric Herschmann (Person 9), Dan Scavino (Person 45), and Stephen Miller (who — best as I can tell — is not mentioned).

Eric Herschmann

If possible, Smith’s prosecutors rely even more heavily on Eric Herschmann’s testimony than the January 6 Committee did. The immunity brief uses his testimony to prove that Trump knew his claims of election fraud were false. It uses Herschmann’s prediction that Trump would never have to pay Rudy for his election interference because Rudy would never be able to prove his claims. It relies on Herschmann’s testimony (and that of another White House staffer) to describe how Trump mocked Sidney Powell even while relying on her false claims. It relies on Herschmann’s testimony about Trump possibly signing a false declaration in a Georgia lawsuit. And it relies on Herschmann to introduce the evidence presented by paid vendors that there was no evidence of substantive election fraud.

The filing includes two long sections (one, two) explaining why Herschmann’s testimony shouldn’t be considered official actions. Herschmann’s relationship with Trump was familial, arising from his childhood friendship with Jared. His portfolio at the White House was undefined. Prosecutors get around the possibility that Herschmann’s testimony might be official by describing his role as a “conduit for information from the Campaign,” providing “near-daily” updates on the campaign. If this argument fails, then a great deal of prosecutors’ best evidence would disappear.

Dan Scavino

Dan Scavino’s testimony is just as critical. Prosecutors want to use Scavino to introduce Trump’s Twitter addiction and to validate that some Tweets — including the one targeting Pence — were sent by Trump.

P45 served as Assistant to the President and White House Deputy Chief of Staff.694 He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos.695 The Government will elicit from P45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that P45 did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.696 He also will generally describe the defendant’s Twitter knowledge and habits, including that the defendant was “very active on his Twitter account,” “paid attention to how his tweets played with his followers,” “was very engaged in watching the news,” and “knew how to read the replies and see all the replies of what people were saying and doing which . . . led to where he would retweet things,” and that any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the defendant personally sending out the Tweet, as opposed to P45 having do it. None of this proposed testimony on P45’s part constitutes evidence of an official act. General information about access to the defendant’s Twitter account, as well as P45’s testimony that P45 did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.

They also want to use Scavino, along with Herschmann and Nick Luna, to testify that Trump was sitting alone in his dining room obsessing about Fox News coverage on January 6.

The filing treats actions by the White House Deputy Chief of Staff as unofficial, in part, by noting that Scavino “volunteered” for the campaign while working as Deputy Chief of Staff and that “he did not differentiate between his official and his Campaign duties and when he would send Tweets on the account for Campaign purposes.” Like Herschmann, Scavino got White House Counsel advice about how to play both a White House and a campaign role. The filing tries to finagle this by distinguishing between Trump’s @POTUS and his @RealDonaldTrump Twitter accounts.

But ultimately, Scavino would be one of the most hostile witnesses at trial, or in any kind of evidentiary hearing (along with Jason Miller). Prosecutors are resting a whole bunch on what even they admit is a vague border between campaign and official Tweeting.

Stephen Miller

Then there’s Stephen Miller, Trump’s Discount Goebbels.

As far as I know, Miller is not mentioned in this brief at all.

That poses a bit of a potential weak point in prosecutors’ effort to rely on Trump’s January 6 speech treated as a campaign speech (which they otherwise do by matching it to a clear campaign speech given in Georgia two days earlier, focusing on who paid for the rally, noting that Secret Service did not consider it an official event, and observing that Trump walked in and out to Lee Greenwood and YMCA rather than Hail to the Chief).

That’s because — as the January 6 Committee Report describes — Miller was intimately involved in adding attacks on Pence back into the speech after the Vice President refused Trump’s demands a final time.

Instead, between 9:52 a.m. and 10:18 a.m., the President spoke with hisspeechwriter, Stephen Miller, about the words he would deliver at the SaveAmerica Rally just hours later.30 The former President’s speech had come together over the course of 36 hours, going from a screed aimed at encouraging congressional objections to one that would ultimately incite mob violence.31

Only four minutes after the call concluded, at 10:22 a.m., Miller emailedrevisions to the speechwriters, instructing them to “[s]tart inputting thesechanges asap” that included “red highlights marking POTUS edits.”32 ThePresident had made some cosmetic additions, like peppering in the word“corrupt” throughout,33 but there was one substantive edit—a new target—that would focus the crowd’s anger on one man.

None of the preceding drafts mentioned Vice President Pence whatsoever. But now, at the very last minute, President Trump slipped in the following sentences calling the Vice President out by name:

Today, we will see whether Republicans stand strong for the integrity of our elections. And we will see whether Mike Pence enters history as a truly great and courageous leader. All he has to do is refer the illegally-submitted electoral votes back to the states that were given false and fraudulent information where they want to recertify. With only 3 of the 7 states in question we win and become President and have the power of the veto.34

[snip]

As recounted in Chapter 5, President Trump called Vice President Penceat 11:17 a.m.39 The call between the two men—during which the President soon grew “frustrat[ed] or heated,”40 visibly upset,41 and “angry”42—lasted nearly 20 minutes.43 And President Trump insulted Vice President Pence when he refused to obstruct or delay the joint session.

After that call, General Keith Kellogg said that the people in the roomimmediately went back to editing the Ellipse speech.44 At 11:30 a.m., Miller emailed his assistant, Robert Gabriel, with no text in the body but the subject line: “insert—stand by for phone call.”45 At 11:33 a.m., Gabriel emailed the speechwriting team: “REINSERT THE MIKE PENCE LINES. Confirmreceipt.”46 One minute later, speechwriter Ross Worthington confirmed that he had reached Vincent Haley by phone.47 Haley corroborated that he added one “tough sentence about the Vice President” while he was at the teleprompter.48

The final written draft had the following Pence reference: “And we will see whether Mike Pence enters history as a truly great and courageous leader.”49 Haley wasn’t confident that line was what he reinserted, but email traffic and teleprompter drafts produced by the National Archives andRecords Administration (NARA) indicate that he was mistaken.50

Here’s how that process appears in the immunity brief:

At 11:15 am., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session.410 When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed.411 He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification.412

Admittedly, in the section that specifically argues for the speech’s treatment as a campaign speech, the filing describes that most staffers were using their personal emails to edit the speech (the brief uses this distinction elsewhere, including to admit communications from Mark Meadows). But not the final revisions.

Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email.585 And officials in the White House Counsel’s Office who customarily reviewed the defendant’s official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech.586

This may not doom prosecutors’ efforts to admit the speech. There are so many other reasons why it is clearly a campaign speech (though of course, SCOTUS has not adopted Blassingame, so they may not even find that dispositive).

But Stephen Miller is right there in the middle of the speech revisions, ready to claim he did so as an official White House employee.

Mind you, if Trump tried to make that argument, prosecutors might revert to the same thing they did to rely on the Tweet Peter Navarro sent, lying about vote fraud, which Trump then used to pitch January 6. Navarro was a Hatch Act recidivist — Trump’s entire White House was — so you can’t use the fact that Navarro had a White House job to rule that his Tweet was an official act.

In tum, that Tweet linked to a document drafted by P69. P69 that had nothing to do with P69’s official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant’s opponent during the lead up to the 2020 presidential election.633 For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were unofficial.

Now’s a good time to reveal that Navarro got a second extension on his deadline to file for cert at SCOTUS, partly because Magistrate Michael Harvey has not yet finished reviewing the emails he sent via ProtonMail for Presidential Records is not yet done. Or, to put it differently, Jack Smith likely still doesn’t have all the emails via which Navarro participated in this coup attempt.

If SCOTUS had any shame, this nitty gritty — the notion that Trump’s mean Tweets against fellow Republicans might be protected under a claim of presidential immunity — would soon become embarrassing.

But then I remember that the three Justices who would be most amenable to such an argument might well grow defensive after being reminded that they were present at the start of all this, the effort to shut down vote counts via lawfare accompanied by the threat of violence.

Update: Lawfare has posted their version of this post. They also point to footnote 3 in the context of Mike Pence’s book.

Update: Note that the December 14 podcast cited in the immunity brief laid out in this post was an interview about the fake elector plot with Stephen Miller. It’s another area where Miller is in the thick of things.

The Phone Contacts between the “Total Moron” and the PAC Head

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According to Person 16 — who has the potty mouth and performed candor we’ve come to expect from Eric Herschmann — Person 5 is a “total moron” — an opinion about Boris Epshteyn that Herschmann has expressed elsewhere.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “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.”

Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

At that same November 2, 2022 interview, Person 16 went on to tell Jack Smith’s investigators how Person 5 ingratiated himself to Trump after the former President left the White House.

Post January 2021, [Person 5] constantly sent FPOTUS what [he] had uncovered on the election fraud and maneuvered [his] way into FPOTUS’ circle. [Person 16] was unaware of an actual [redacted] for [Person 5], stating it was [Person 5] who would instruct media to report [on him] as [redacted].

I long laughed at the the way that journalist after journalist credited Ephsteyn with playing a role in Trump’s legal defense even while Ephsteyn was billing Trump’s PAC for strategy consulting, not law.

For the entirety of the time that Epshteyn was quarterbacking Trump’s response to the stolen documents probe, someone in his immediate vicinity has been telling reporters that he was playing a legal function, all the while billing Trump for the same old strategic consulting his firm, Georgetown Advisory, normally provides (though the two payments the campaign made to Epshteyn after Trump formalized his candidacy, totalling $30,000, were filed under “communications and legal consulting”).

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

All the time that NYT was describing Epshteyn as playing a legal role — and NYT is in no way alone in this — he was telling the Feds he wasn’t playing a legal function, he was instead playing a strategic consulting one. Many if not most of these stories also post-date the time, in September, when the FBI seized Epshteyn’s phone, which would give him a really good reason to try to claim to be a lawyer and not a political consultant.

According to Person 16, he “believed [Person 5] was now trying to create [redacted] to cover [him] for previous activities. [Person 16] believed [Person 49’s] records may reflect recent [redacted] that did not reflect what actually transpired.”

It was around the time of this interview, in November 2022, when Ephsteyn did start billing for legal services, even while the press was credulously reporting that he had always been serving in a legal role. That happened in the aftermath of Ephsteyn’s phone being seized, in September 2022.

Person 16 also thought that “total moron” Person 5 might have shifted the concern about witness tampering from the January 6 investigation[s] to the stolen document one.

[Person 16] could not recall where the information that the concern about witness tampering was related to the document investigation and not the January 6th Committee. [Person 16] commented that sounded like something [Person 5] would do.

That interview was in November 2022.

In January 2023, according to an exhibit submitted in support of a discovery request for records on all correspondence and/or communications regarding counsel, Jack Smith’s office asked the FBI to pull together the toll records between Person 49 — who may be Susie Wiles, the head of America First PAC — and both Person 5 and Stanley Woodward.

The contacts between Person 49 and Woodward are not that interesting — just four phone calls in fall 2022, when Woodward started representing Kash Patel.

The contacts between Person 5 (whom I suspect is Ephsteyn) and Person 49 (whom I suspect is Wiles) are more interesting.

The contacts started on April 20, 2021, when Person 5 called Person 49, with sustained contact for a few months and then a lapse.

The contacts resumed in September and October 2021 (when the January 6 Committee was ratcheting up).

There were four phone calls in one week in November 2021, and two longer calls in December 2021.

And then nothing, until when Ephsteyn started ingratiating himself in Trump’s orbit after the documents issue went public in February 2022. From that point forward they were “in contact almost daily.”

Of course, these SMS texts might not be that useful. The paragraph of the superseding stolen documents indictment that describes Wiles vetting Carlos De Oliveira’s loyalty before arranging legal representation of him describes that Nauta confirmed his now co-defendant’s loyalty on a Signal chat, not an SMS text.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney. [my emphasis]

Among the exhibits included in this request for discovery is a fragment of an interview with Person 49 denying unequivocally that she had done such vetting (as well as an earlier interview in which she said Person 16 was at the forefront of finding lawyers). If this is Wiles, she denied conducting loyalty checks before agreeing to find legal representation for people.

Mind you, that’s not the only place Wiles shows up in the superseding indictment.

In August or September 2021, when he was no longer president, TRUMP met in his office at the Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-t0-know classified information about the military operation.

That was around the time when Person 49 resumed phone contact with Person 5 again.

This ABC piece talks about what a big deal it is that Wiles might have to testify at trial in the height of a campaign she’s leading (though Aileen Cannon seems dead set on preventing that from happening).

And this post describes how Wiles likely showed up in another Trump-related indictment as the Florida campaign official who interacted — unwittingly — with Yevgeniy Prigozhin’s trolls.

Mark Meadows’ Proffer

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I continue to dig through the document dump Judge Aileen Cannon finally released the other day.

The dump included 70 exhibits (some FOIAed documents) submitted in conjunction with Trump’s motion to compel discovery and a few exhibits submitted with the government’s response.

The most titillating of the latter set is a November 2022 interview with Person 16 (whom I suspect to be Eric Herschmann, in part because Herschmann relishes giving titillating interviews in which he calls other lawyers morons).

But for the moment, I want to look at Person 27’s December 2022 proffer.

While the government is coy about the identity of Person 16, they’re not hiding Person 27’s identity: It is Mark Meadows.

The passages below, matched to the corresponding exhibits, makes it clear that Person 27 is Trump’s former Chief of Staff. Said Chief of Staff briefly got involved in the document recovery effort after NARA first threatened to make a referral to DOJ, then threatened to deem the boxes Trump had taken destroyed. Said Chief of Staff traveled to Mar-a-Lago in October 2021 (at a time when discussing the January 6 investigation would have been fruitful) and while there asked if Trump wanted help searching boxes, only to be told that Trump didn’t need help returning documents he wanted to keep.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

These passages, collectively, serve to rebut Trump’s claim that the involvement of Biden White House attorney Jonathan Su was in any way investigative or improper; the passage shows that Patrick Philbin involved Su, his successor as White House Deputy Counsel, and the White House had to further intervene when Meadows tried to reach out to a White House Office of Records and Management person, Person 40, directly.

This ABC story describing Meadows’ testimony, describing offering to help but being rebuffed, further corroborates that Person 27 is Meadows.

The former chief of staff also told investigators that shortly after the National Archives first requested the return of the official documents taken to Mar-a-Lago in 2021, he offered to Trump that he would go through the former president’s boxes to retrieve the official records and send them back to Washington. Meadows told investigators Trump did not accept his offer, according to sources.

So Government Exhibit C is a December 6, 2022 proffer from Mark Meadows.

I’m not so much interested in the content of that proffer. As ABC has reported, Meadows’ testimony was iterative, slowly evolving over at least three interviews as he was presented with more evidence of details that Jack Smith knew. Aside from a mostly redacted reference to Trump’s delegation of declassification authority (which may relate to the effort to declassify the Crossfire Hurricane binder and which might not be entirely true), the description of his trip to Mar-a-Lago to offer to help is the most interesting bit in this proffer.

But that’s the thing about proffers, offered by one of the best attorneys representing any Trumpster, George Terwilliger, offered before Beryl Howell overruled any Executive Privilege claims, and offered before the Georgia indictment made Meadows’ operative January 6 story told in DC less sustainable.

Proffers are the story you want to tell, not the full story.

As I wrote last August, after the first of ABC’s big scoops,

[T]his is not the testimony of a cooperating witness. It is the testimony of someone prosecutors have coaxed to tell the truth by collecting so much evidence there’s no longer room to do otherwise.

There are a number of things to which Meadows eventually testify, per ABC’s reporting, that are not in this proffer. The most notable pertains to his ghost writers, on which topic his testimony evolved to accept that they were probably right that Trump was sharing classified documents in 2021.

“On the couch in front of the President’s desk, there’s a four-page report typed up by Mark Milley himself,” the draft reads. “It shows the general’s own plan to attack Iran, something he urged President Trump to do more than once during his presidency. … When President Trump found this plan in his old files this morning, he pointed out that if he had been able to make this declassified, it would probably ‘win his case.'”

Sources told ABC News that Meadows was questioned by Smith’s investigators about the changes made to the language in the draft, and Meadows claimed, according to the sources, that he personally edited it out because he didn’t believe at the time that Trump would have possessed a document like that at Bedminster.

Meadows also said that if it were true Trump did indeed have such a document, it would be “problematic” and “concerning,” sources familiar with the exchange said. Meadows said his perspective changed on whether his ghostwriter’s recollection could have been accurate, given the later revelations about the classified materials recovered from Mar-a-Lago in the months since his book was published, the sources said.

According to ABC, where Meadows’ other testimony would evolve to is that he would have been more diligent than Trump returning stolen documents.

Meadows also told investigators that he would have responded differently than Trump when the National Archives first asked Trump to return all remaining presidential records in his possession, and would have been very diligent in his handling of the initial search for documents to return to NARA, sources familiar with the matter said.

It’s unclear if there’s an “if” involved in this conditional statement, such as “if he knew Trump was stealing classified documents.”

That’s interesting, because in that proffer, Meadows claimed not to believe Trump had Presidential Records at all.

In July 2021, [Philbin] informed [Meadows] that NARA had contacted [Philbin] regarding missing boxes of documents. [Meadows] was already planning to travel to Mar-a-Lago for an unrelated meeting and offered to look for the missing boxes while [he] was there. [Meadows] was skeptical there were any presidential records as [he] believed, based on [his] experience with FPOTUS at the White House, that the boxes likely only contained newspapers.

Again, there’s a pretty big chance that this particular claim evolved, just like Meadows’ explanation for why he edited a really damning description from his ghost writers. The proffer is a baseline, a place from which prosecutors could slowly coax testimony closer to the truth, all the while locking in useful testimony to rebut Trump’s most outlandish claims. In this case, after all, the testimony is critical to rebutting Trump’s complaints about the involvement of Su, whether or not the testimony was entirely forthcoming, even while not giving anything away.

And I’m interested in it for that reason as well.

This proffer doesn’t tell us how Meadows would later testify. It doesn’t give anything away.

Robert Mueller’s team tried to flip witnesses against Trump, only to find that Trump bought them off with pardons — something that Person 16 describes already got promised to Walt Nauta. Here, there’s a far larger cast of characters, including people like Meadows who are central to all of Trump’s suspected crimes and also likely to welcome an offer of a pardon in exchange for loyalty. This slow squeeze is a different approach.

And along the way, Jack Smith got useful testimony — testimony that will give him what he needs to go to trial — but testimony that also can be used to inch closer to the truth.

Trump’s Family Is Not in His Prosecution

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Chris Hayes made a salient observation yesterday: None of Trump’s family members have accompanied him to attend one after another arraignment.

It’s notable that he’s alone. There’s no posse and there’s no retinue and there’s no family. I would hope if I were to go through the ordeal that this man is currently facing, in my darkest hours, my wife and my kids, my loved ones and my friends, that I would have a crew, people that were standing with me. There’s — his wife is not there, I can’t see any of his kids, his daughter, who worked for him. No one! The guy is alone!

With two of those arraignments book-ending a persistent campaign from the far right, boosted by an A1 story in the NYT, politicizing Joe Biden’s decision to not to recognize Hunter’s illegitimate child until after the contentious paternity suit was settled, Hayes may be the first person in the press to note that Trump’s family has failed to attend his court hearings.

Sure, Eric and Don Jr are making speeches to rile up the base.

But why won’t Melania support her spouse as he faces three — and soon to be four — criminal prosecutions?

Are Ivanka and Jared too busy gulping down Saudi blood money to support their former boss?

Has Boris Epshteyn, who attended at least two of three arraignments and who is one of two likely candidates to be co-conspirator 6 in the January 6 indictment, become Trump’s symbolic son?

The failure of a single family member to accompany Trump to an arraignment — and the general silence on it — matches another detail of this latest prosecution.

A female Trump family member makes a cameo appearance in his stolen documents indictment, instructing Walt Nauta that there’s no space in the plane headed to Bedminster for all of Trump’s boxes.

On May 30, 2022, at 12:33 p.m., a Trump family member texted NAUTA:

Good afternoon Walt,

Happy Memorial Day!

I saw you put boxes to Potus room. Just FYI and I will tell him as well:

Not sure how many he wants to take on Friday on the plane. We will NOT have a room for them. Plane will be full with luggage. Thank you!

NAUTA replied:

Good Afternoon Ma’am [Smiley Face Emoji]

Thank you so much.

I think he wanted to pick from them. I don’t imagine him wanting to take the boxes.

He told me to put them in the room and that he was going to talk to you about them.

Whichever female family member this was will not have to testify. Nauta’s own words will be admissible at trial. And they’re in the indictment primarily to situate where the documents were: in “Potus room.”

But, unless I’m missing it, the January 6 indictment doesn’t include references to family members — not Don Jr or Eric, who both gave speeches, not Jared, who was involved in some campaign-related events.

And especially not Ivanka.

There are two key parts of the indictment where Ivanka should show up.

First, the indictment describes the call Trump made to Pence the morning of January 6, while hanging around the Oval Office with his family, Eric Herschmann, and Keith Kellogg, this way.

102. At 11: 15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning-falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be removed.

The January 6 Committee spent a great deal of investigative focus obtaining witnesses who heard Trump’s side of the call. Keith Kellogg and Eric Herschmann (the latter of whose presence in the “family” meeting raises such interesting questions) both told part of the story. One of the most useful, it turns out, was Ivanka’s Chief of Staff, Julie Radford, who told the committee how Ivanka returned from that meeting deeply upset because Trump had called Mike Pence something like a “pussy.”

In fact, in their referrals section, the J6C Report specifically noted that Ivanka’s version of this story was so much less credible than Radford’s.

But in this telling, the indictment relies — appropriately, from an evidentiary standpoint — solely on Mike Pence, the only person, besides Trump, involved in both sides of the conversation.

There’s another passage where Ivanka was far more directly involved: in the efforts to get Trump to call off the rioters.

This passage describes that “his most senior advisors,” including Pat Cipollone, Pat Philbin, Mark Meadows, probably Dan Scavino, and almost certainly Eric Herschmann, tried to get Trump to write a tweet directing the mob to vacate the building.

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. Instead, the Defendant issued two Tweets that did not ask rioters to leave the Capitol but instead falsely suggested that the crowd at the Capitol was being peaceful, including:

a. At 2:38 p.m., “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”

b. At 3:13 p.m., “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!” [my emphasis]

These statements are another thing on which J6C focused a lot of attention, particularly the first. And they obtained a good deal of evidence about how Herschmann had come to Ivanka’s office and brought her to the Dining Room to get her help in convincing Trump to release the 2:38PM tweet.

Indeed, Sarah Matthews was quite certain that the language about “staying peaceful” — the language the indictment includes among Trump’s many false claims — came from Ivanka.

Yet even though Ivanka was, in the Trump White House, every bit as important an advisor to Trump as Pat Cipollone, Pat Philbin, Mark Meadows, Dan Scavino, and Eric Herschmann, she’s not mentioned, neither as “his daughter,” nor as “Assistant to the President,” her formal title.

Just 15 minutes after the “stay peaceful” tweet, Don Jr also attempted to get Dad to call off the mob, but there’s no mention of that in this indictment either.

But the silence about Ivanka’s even more central role in all this is really telling given the recent NYT report — posted just over two weeks before the grand jury voted out this indictment — that she had never been asked to testify to the grand jury (technically this does not exclude an interview).

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Trump is alone at the defendant’s table, with none of his family members.

But even more striking, Trump is alone in his indictment, without any of the key roles played, including by his daughter and most trusted advisor, laid out in the overt acts.

How Holes in Ivanka’s Testimony Could Help Make an Obstruction Case against Her Father

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When Ivanka Trump was first invited to testify to the January 6 Committee, at least as she tells it, her father encouraged her to testify.

I-after the letter was made public inviting me to attend, I was actually traveling with my children at the time. So I was I was not — I was not in Florida. But I remember him saying something in a subsequent conversation to the effect of, “Great, you should do it,” or something something like that. It was sort of very casual.

Because I told him immediately upon receiving it, I indicated my willingness to participate in these hearings and be as forthright as possible, and he didn’t discourage that in any way.

Her testimony was pretty helpful to him. She had no recall of most damning details of his role in a coup attempt (the record shows that, with the exception of a speech in Georgia on January 4, of which she also claimed to have no recall, Ivanka wasn’t closely involved in the Big Lie). She claimed to “perceive” that he was shocked about the attack on the Capitol, though she could provide no explanation for why she concluded that. And she affirmatively claimed that his failure to respond to the attack on the Capitol was instead a strong response.

Any testimony Ivanka gives to a grand jury in response to a recent subpoena may be less helpful, because in the interim, J6C and — undoubtedly — Jack Smith’s team have developed far more evidence that Donald Trump affirmatively refused to ask rioters to leave the Capitol during the height of the attack, something that would meet a key element of the offense for obstruction and conspiracy to obstruct the vote certification charges.

Per the J6C Report, the process of trying to get Trump to give a statement started before the first breach of the Capitol, by 1:57PM, according to the timing of a call Eric Herschmann placed to Jared.

And I got a call, I think it was from Herschmann, basically saying like, you know, this is getting pretty ugly, people are trying to break into the Capitol, you know, we’re going to, you know — and I said, you know, basically saying — I think he started by saying, “Where are you?”

And I said, “I’m on an airplane.”

And he said, “Okay, we’ve got to deal with this here. People are trying to break into the Capitol. We’re going to see what we can do here. We’re going to try to get the President to put out a statement.”

After the initial breach at 2:13 PM, according to Cassidy Hutchinson, Pat Cipollone pushed Mark Meadows to barge into the dining room and do something to stop the attack.

No more than a minute, minute and a half later, I see Pat Cipollone barreling down the hallway towards our office; and rush right in, looked at me, said, is Mark in his office? And I said, yes. He just looked at me and started shaking his head and went over — opened Mark’s office door, stood there with the door propped open and said something to — Mark is still sitting on his phone.

I remember like glancing and he’s still sitting on his phone. And I remember Pat saying to him something to the effect of, the rioters have gotten to the Capitol, Mark. We need to go down and see the President now. And Mark looked up at him and said, he doesn’t want to do anything, Pat. And Pat said something to the effect of — and very clearly had said this to Mark — something to the effect of, Mark, something needs to be done or people are going to die and the blood is going to be on your f’ing hands.

This is getting out of control. I’m going down there.

But that may have made things worse. Ten minutes later, at 2:24PM, Trump tweeted out his attack on Mike Pence, then attempted to call Tommy Tuberville, effectively ignoring the pleading of his aides and focusing instead on trying to organize objections to the vote.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

While the timeline is uncertain, seemingly after this tweet, Eric Herschmann was involved in two separate efforts to get Trump to call on rioters to leave.

One effort pertained to the contested note — a contest the stakes of which are more clear given Ivanka’s testimony.

As I laid out here, at a time when he believed (having been told as much from Hutchinson’s then-attorney Stefan Passantino) that Hutchinson had completed her testimony with J6C without mentioning this note, Herschmann claimed to remember one thing above all about his interactions with the President that day: that he wrote this note.

In later testimony, Hutchinson said she wrote it, on Meadows’ order.

The difference is subtle. As Hutchinson tells it, Meadows referred to the rioters being present at the Capitol “illegally,” but Herschmann offered “without proper authorization,” to give Trump something more palatable to adopt. Some time later, after Meadows came back from the dining room with the card, the “illegally” language had been crossed out entirely, but with Trump failing to act on either action.

CASSIDY HUTCHINSON: The chief of staff was in a meeting with Eric Hirschman and potentially Mr. Philbin, and they had rushed out of the office fairly quickly. Mark had handed me the note card with one of his pens, and sort of dictating a statement for the president to potentially put out.

LIZ CHENEY: And — no, I’m sorry. Go ahead.

CASSIDY HUTCHINSON: That’s Ok. There are two phrases on there, one illegal and then one without proper authority. The illegal phrase was the one that Mr. Meadows had dictated to me. Mr. Herschmann had chimed in and said also put without legal authority. There should have been a slash between the two phrases. It was an — an or if the president had opted to put one of those statements out. Evidently he didn’t. Later that afternoon, Mark came back from the Oval Dining Room and put the palm card on my desk with illegally crossed out, but said we didn’t need to take further action on that statement.

But it didn’t work. Herschmann concedes that the effort to get Trump to send out the message on the card — “anyone who entered the Capitold illegally without proper authority should leave immediately” — failed. Trump wouldn’t ask rioters to leave the building for at least another hour.

Q So I’m more interested, though, in the “should leave immediately” point which the President didn’t say in his ensuing tweets. Did anybody push back on your suggestion that the President should say that the people who entered the Capitol should leave immediately?

A No, nobody pushed back on that.

Q Do you have any idea why the statement didn’t go out?

A Why what I wrote didn’t go out.

Q Yes?

A I don’t. I mean, he decided not to issue this statement and issued one when lvanka went back there.

Q Okay. Do you know who made the decision not to issue this statement?

A I do not. I don’t think there was an issue of an idea that someone would be saying you shouldn’t leave immediately. I think it was presumed that that was the point of a statement, of any statement, was, no violence, leave the Capitol. But I don’t remember a discussion about that topic individually or particularly.

Before Hutchinson gave her later testimony, Herschmann managed to flush the discussion with Trump about asking rioters to leave down a black hole of his failed memory. With it, though, she changes his own involvement, from taking the lead on the note, to trying to find a palatable statement for Trump to make.

Given the reference to “Ivanka went back there,” his second effort seems to have followed the effort with the card. Herschmann ran to Ivanka’s office and got her to ask Trump to make a statement.

Ivanka’s testimony, given weeks before that of two of her staffers, Rachel Craddock and Julie Radford, was that the first she heard of the violence at the Capitol was when Herschmann burst into her office.

But Radford testified that, after her own spouse texted her to ask if she was alright, she went into Ivanka’s office, turned on the TV, checked Twitter. Then they called in Craddock and they all started drafting Ivanka’s own tweet to call for peace, one she would eventually send out and then delete after catching heat for referring to the attackers as “Patriots.”

That’s when, per the staffers, Herschmann came in to get her.

The difference, of course, is not just whether Ivanka knew of the violence at the Capitol, but whether she knew her father had already targeted Pence. Ivanka claimed not to know what even Trump knew when she went into the dining room, even dodging a question about whether (!!!) he had the TV on.

Q Do you know whether or not he was aware of the violence that you had seen on your television when you first arrived in the dining room?

A I don’t know when he learned of the violence. I believe that he was aware of it because he immediately started the process of crafting a statement, and I don’t recall me bringing him up to speed.

Like I think he generally was aware when I entered. I don’t know when, though, he became aware, and I don’t know we didn’t have a specific conversation about what he knew or didn’t know.

I felt it was incredibly important that he issue a strong statement. Twitter was an obvious place for him to do tt because it was authentic to his voice, He would often a tweet. And it was fast.

So — but I don’t recall who said it should — if there was a discussion about Twitter versus not. I just recall the discussion of the statement itself

In her testimony, Ivanka gave Trump credit for the language used in the tweet.

Q Do you remember the President proposing any specific language, any particular words?

A I think it was all largely his language. I remember at the end we said, you know, in addition to the condemnation of violence and the need to respect law enforcement, I remember there was a discussion about adding the words “be peaceful” that I believe he suggested — he suggested or I suggested. You know, it was part of a discussion.

But I think the content was not in debate while I was present.

But Kayleigh McEnany told J6C that that language came from Ivanka, not Trump. And Sarah Matthews passed on, second-hand, that Kayleigh had described a dispute about even this lukewarm language.

[S]he said that he did not want to put that in and that they went through different phrasing of that, of the mention of peace, in order to get him to agree to include 2 it, and that it was Ivanka Trump who came up with “stay peaceful” and that he agreed to that phrasing to include in the tweet, but he was initially resistant to mentioning peace of any sort.

Most importantly, though, the second effort, too, failed to convince Trump to ask his rioters to leave the Capitol.

When committee personnel asked Ivanka why the tweet didn’t ask rioters to leave and didn’t ask them to condemn violence, she bullshitted, and claimed those ideas were incorporated in the tweet.

Now, the statement doesn’t ask people to leave the Capitol. It actually uses the word “stay,” “stay peaceful.” Do you remember any discussion about whether the tweet should directly encourage people to leave or disperse?

A Well, definitely the intention of “stay peaceful” was not to tell people to remain. It was to – for anyone who was not being peaceful should stop, and anyone who was, don’t get involved.

Q Uh-huh. The tweet also says nothing about violence, doesn’t condemn violence or reference violence. It just calls on people to support law enforcement because they’re truly on the side of the country and stay peaceful.

Do you remember any discussions about more explicitly condemning violence?

A That was the intention. And I believe that a subsequent tweet shortly there after did that. I think the immediate urgency was to try to deescalate the situation–

Q Uh-huh

A – as effectively as possible. So think everyone believed this would be an effective way to do it.

As far as is publicly known, Ivanka is at no risk of charges for obstructing the vote count. Her intention does not matter. Her father’s does. And her statement that the goal was to get people to leave but that Trump, for a second time within an hour, refused to make that ask says a great deal about Trump’s approval of the bodies preventing the certification of the vote count by violently remaining in the Capitol.

This is the kind of ratification of the mobsters obstruction that Amit Mehta talked about when letting a lawsuit against Trump proceed, only with far more detail that Trump affirmatively refused to do anything, not even when his daughter implored him.

Even ignoring the greater tools DOJ will have to clarify both the timing of these two efforts and the contacts involving others — most notably, Kevin McCarthy, who called several of the key players during this time period — interspersed with them, it would be harder for Ivanka to deny remembering this. Four witnesses friendly to Ivanka — Craddock and Radford, Matthews and Kayleigh — have challenged key parts of Ivanka’s earlier testimony. Whatever success Trump would one day have at discrediting Hutchinson’s testimony, it has been backed by multiple other witnesses (and Kayleigh’s testimony that Ivanka, not her dad, wrote the tweet is backed by the former press secretary’s own notes).

Plus, Ivanka would be reckless to assume no one else’s testimony has changed or expanded, particularly given that the two Pats — Cipollone and Philbin — testified under an Executive Privilege waiver last year.

The most important change, however, is the uncertain fallout of suspicions that Hutchinson’s former attorney was trying to limit her testimony in order to protect Herschmann.

Aside from Herschmann’s silence as Trump gave Mike Pence an order to violate the Constitution, there’s nothing independent of attempts to coach Hutchinson’s testimony and involvement in the financial aftermath of the election that give him any legal exposure. A slew of witnesses testified that he made sustained attempts to get Trump to call off his mob. But Passantino’s alleged efforts to alert Herschmann to Hutchinson’s testimony, and Herschmann’s 30-minute phone call to her afterwards, means Herschmann’s forgetfulness about his interactions with Trump on January 6 may evolve as well. One way or another, Hutchinson’s split from Passantino gives Smith one more tool to use to obtain testimony.

At least last year, Jared, Ivanka, her staffers, and Herschman, as well as Alex Cannon and two of Trump’s other gatekeepers were all represented by the same attorney from Kasowitz (one, Molly Michael, has been sucked into the stolen document case).

Ivanka’s grand jury testimony may do little more than lock her into her past testimony to the J6C. But it’s possible either her testimony or Herschmann’s before Smith’s grand jury will be more forthcoming.

Between Herschmann and Ivanka, there are several other conversations from January 6 they disclaimed remembering before J6C: Herschmann called Ivanka just before 10AM on January 6. The two spoke after Ivanka left the Oval Office meeting from which Trump called Pence, directly before both changed plans and went to the rally. Ivanka spoke to her father just before he started speaking at the Ellipse rally, followed, separately, by Herschmann. Anything Herschmann and Trump said to each other as Herschmann oversaw the filming of Trump’s videotaped response. The substance of the five minute call Herschmann had with Trump at 10:50PM on January 6. All of that may well remain unrecalled, to say nothing of Ivanka’s wildly incredible claim that she and Jared never spoke about January 6 afterwards.

But the testimony of all these people put together may well provide Smith enough to prove that Trump affirmatively refused to ask his supporters to leave after he attacked Mike Pence at 2:24PM. And that may be a big factor in whether Smith charges Trump with obstruction and conspiracy to obstruct the vote certification.

Related interview dates

February 23: Cassidy Hutchinson interview (Passantino)

March 7: Cassidy Hutchinson interview (Passantino)

March 31: Jared Kushner interview (Benson)

April 4: Ivanka interview (Benson)

April 6: Eric Herschmann interview (Benson)

May 17: Cassidy Hutchinson interview (Passantino)

May 24, 2:06 to 2:45PM: Rachel Craddock interview (Benson)

May 24, 3:01 to 4:15PM: Julie Radford interview (Benson)

June 28: Cassidy Hutchinson testimony (Hunt)

September 14: Cassidy Hutchinson interview (Hunt)

September 15: Cassidy Hutchinson interview (Hunt)

Maggie Haberman’s Foray into Campaign Finance Journalism

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I started unpacking this Maggie Haberman story yesterday morning.

It was an unusual story. Love or hate Maggie, she’s a really hard working journalist. But her forté is working phones, not documents.

Nevertheless, Maggie set out alone, without the involvement of an expert on documents generally or the FEC specifically (someone like David Fahrenthold) to explain why Jack Smith’s prosecutors are subpoenaing vendors of Trump’s Save America PAC.

The Justice Department has been subpoenaing documents from vendors paid by the PAC, including law firms, in an effort to determine what they were being paid for.

It seemed to be a follow-up to this story, which, by suggesting that JP Cooney had only joined the team with Smith’s hiring, falsely implied that DOJ had only started pursuing this angle after his appointment.

Three of his first hires — J.P. Cooney, Raymond Hulser and David Harbach — were trusted colleagues during Mr. Smith’s earlier stints in the department. Thomas P. Windom, a former federal prosecutor in Maryland who had been tapped in late 2021 by Attorney General Merrick B. Garland’s aides to oversee major elements of the Jan. 6 inquiry, remains part of the leadership team, according to several people familiar with the situation.

In addition to the documents and Jan. 6 investigations, Mr. Smith appears to be pursuing an offshoot of the Jan. 6 case, examining Save America, a pro-Trump political action committee, through which Mr. Trump raised millions of dollars with his false claims of election fraud. That investigation includes looking into how and why the committee’s vendors were paid.

In December, CNN reported that Cooney had been following the money for a year by that point, and even the NYT noted overt signs of that prong in September.

That earlier story nodded towards the same thing that this Daily Beast story, the January 6 Committee Report appendix on following the money, and this Campaign Legal Center complaint (the latter, focused on the 2020 campaign) did: Trump has apparently been treating campaign fundraising like a money laundering vehicle.

Go figure.

But Maggie, writing on her own, focuses instead on prospective crimes: the possibility that continuing to pay legal bills out of money raised starting in 2020 would be a different campaign finance violation.

Some of the $16 million appears to have been for lawyers representing witnesses in investigations related to Mr. Trump’s efforts to cling to power. But the majority of it — about $10 million — went to firms directly representing Mr. Trump in a string of investigations and lawsuits, including some related to his company, the filings showed.

Back in November, CLC did a report noting that Trump was doing that more generally, not just with lawyers.

All that’s not actually why I was interested in the story, but if you want an accounting of how much PAC money Trump is spending on legal services, Daily Beast’s tally includes the money spent by the MAGA PAC as well, adding up to $29.1 million since leaving office.

After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.

That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.

Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.

Back to Maggie’s solo endeavor to read FEC filings.

There are two reasons I was interested in the story. First, having looked at FEC filings, Maggie seems to have discovered that the $195,000 in services that Boris Epshteyn billed to Save America PAC last year were not for legal services, but instead strategic consulting.

Another $1.3 million went to Silverman Thompson Slutkin and White, the firm of Evan Corcoran, a lawyer who began working with Mr. Trump last spring. Mr. Corcoran was brought into Mr. Trump’s orbit by Boris Epshteyn, a strategist who has played a coordinating role with some of the lawyers in cases involving Mr. Trump, as the investigation related to the Mar-a-Lago documents was heating up. (Mr. Epshteyn’s company was paid $195,000, but for broader strategic consulting, not legal consulting specifically.)

This is an important point, but one Maggie did not highlight (nor issue corrections on past stories). For the entirety of the time that Epshteyn was quarterbacking Trump’s response to the stolen documents probe, someone in his immediate vicinity has been telling reporters that he was playing a legal function, all the while billing Trump for the same old strategic consulting his firm, Georgetown Advisory, normally provides (though the two payments the campaign made to Epshteyn after Trump formalized his candidacy, totalling $30,000, were filed under “communications and legal consulting”).

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

All the time that NYT was describing Epshteyn as playing a legal role — and NYT is in no way alone in this — he was telling the Feds he wasn’t playing a legal function, he was instead playing a strategic consulting one. Many if not most of these stories also post-date the time, in September, when the FBI seized Epshteyn’s phone, which would give him a really good reason to try to claim to be a lawyer and not a political consultant.

DOJ is more likely to take FEC’s word on this issue than claims Epshteyn made to the press after his phone seizure.

Like I said, virtually every media outlet seems to be repeating the claim that Epshteyn has been playing a legal, not political role. But there’s one Maggie story, in particular, where the question of Epshteyn’s role is central: This story, quoting Eric Herschmann calling Epshteyn (and Evan Corcoran) idiots, a habit that made Herschmann a star witness for the January 6 Committee. Herschmann’s glee about calling Sidney Powell, Jenna Ellis, John Eastman, and now Epshteyn and Corcoran idiots always distracted from sketchier aspects of Herschmann’s behavior, such as Keith Kellogg’s puzzlement about why a lawyer sat in the Oval Office while Trump ordered Mike Pence to break the law and said nothing.

Anyway, this Maggie story focusing on Epshteyn’s role not only called him an idiot, but also insinuated he was witness tampering.

To the extent anyone is regarded as a quarterback of the documents and Jan. 6-related legal teams, it is Boris Epshteyn, a former campaign adviser and a graduate of the Georgetown University law school. Some aides tried to block his calls to Mr. Trump in 2020, according to former White House officials, but Mr. Epshteyn now works as an in-house counsel to Mr. Trump and speaks with him several times a day.

Mr. Epshteyn played a key role coordinating efforts by a group of lawyers for and political allies of Mr. Trump immediately after the 2020 election to prevent Joseph R. Biden Jr. from becoming president. Because of that role, he has been asked to testify in the state investigation in Georgia into the efforts to reverse Mr. Biden’s victory there.

Mr. Epshteyn’s phone was seized by the F.B.I. last week as part of the broad federal criminal inquiry into the attempts to overturn the election results and the Jan. 6 assault on the Capitol.

[snip]

In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.

Mr. Herschmann made clear in the emails that absent a court order precluding a witness from answering questions on the basis of executive privilege, which he had repeatedly implored them to seek, he would be forced to testify.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “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.”

[snip]

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

Mr. Epshteyn declined to respond to a request for comment. [my emphasis]

The story ends by reporting that Herschmann’s, “testimony was postponed.”

I’m not aware of any report that describes Herschmann has been called back to testify.

The story is dated September 16, 2022.

Two days earlier, Cassidy Hutchinson had testified to the January 6 Committee (after already beginning to cooperate with DOJ) that after she testified on May 17 that Herschmann was present for a conversation about Trump saying that “Hang Mike Pence” chants were justified, her then-lawyer Stefan Passantino seemingly contacted Herschmann who then called Hutchinson and told her, “I didn’t know that you remembered so much.”

Ms. Cheney. When Stefan said “I’ll talk to some people,” do you know who he was referring to?

Ms. Hutchinson. I didn’t ask. assume it was the same entourage of people that he had been conferring with for the past few weeks.

You know, I had also received a call from Eric Herschmann, I believe on Friday, May 20th. I believe it was Friday, May 20th. It was, because this was after the interview.

And Eric called me that evening, and I just apologized. And he was like, you know, “I didn’t know that you remembered so much, Cassidy. Mark [Meadows] really put you in bad positions. I’m really sorry that he didn’t take care of you better. You never should’ve had to testify to any of that. That’s all of our jobs. I don’t know why they didn’t ask us, they asked you instead.”

And I was just like, “Look, Eric like, it is what it is.” And he kind of talked for — it was probably a 30-minute conversation.

In the same J6C appearance two days before that Maggie story painting Ephsteyn as a witness tamperer, Hutchinson told the committee that she suspected that Passantino had spoken to Maggie about her testimony, something that, if true, would have had the effect of sharing her testimony with other witnesses without appearing to obstruct the investigation. She also described Alex Cannon to be involved in the outreach to Maggie.

The next day, September 15, Hutchinson provided the committee more detail about Passantino’s alleged efforts to share her testimony with Herschmann and others. Passantino told her to call Trump’s lawyer, Justin Clark, as well as Alex Cannon and Eric Herschmann, Hutchinson told the committee on September 15.

The day after my third interview with the committee, on Wednesday, May 18th, Stefan let me know that I — he spoke with Justin Clark, Alex Cannon, and Eric Herschmann and suggested that I call — that I have a call with all three of them.

I reached out to initiate the call with Alex Cannon and Justin Clark per Stefan’s instruction. And the that Friday, May 20th, received a call on Signal from Eric Herschmann.

So on September 14, Hutchinson told J6C about behavior involving Herschmann resembling witness tampering, including behavior involving Maggie Haberman! On September 15, Hutchinson told J6C about behavior involving Herschmann resembling witness tampering. And on September 16, Maggie Haberman quoted Herschmann blaming Epshteyn for any witness tampering.

All that background is why I find the way Maggie ended her foray into campaign finance journalism so interesting. She quotes anonymous sources — not the public J6C transcripts showing that Passantino and Alex Cannon were sourcing her earlier reporting on this — attributing Hutchinson’s testimony as the genesis of this focus on paying law firms.

The questions of which lawyers and vendors have been paid, and for what, intensified after the House select committee investigating Mr. Trump’s efforts to cling to power told the Justice Department that it had evidence that a lawyer representing a witness had tried to coach her testimony in ways that would be favorable to Mr. Trump. The witness in question was later identified by people familiar with the committee’s work as Cassidy Hutchinson, a former White House aide.

Her lawyer at the time, Stefan Passantino, was a former White House deputy counsel under Mr. Trump and was paid through Save America.

The reason I’m interested in this is because the point of Passantino’s alleged efforts to coach Hutchinson’s testimony was not, primarily, to protect Trump. According to Hutchinson’s testimony, at least, it was to protect Eric Herschmann, someone who has had tremendous success (like his close associate Jared Kushner) laundering his reputation through Maggie Haberman.

Ms. Hutchinson. ~ You previously asked about individuals he had raised with me. In my conversation with him earlier that afternoon, when I [sic] asking him about the engagement letter, I did also ask Stefan if he was representing any other January 6th clients. And he had said, “No one that I believe that you would have any conflicts with.”

And I said, “Would you mind letting me know?” Now, again, to this day, I still don’t know if that’s really a kosher question to ask an attorney, if they can share their clients with me, but I wanted to make sure that there actually weren’t any conflicts, because I didn’t have anything in writing.

He wouldn’t tell me anybody he was representing before the January 6th Committee, but he did tell me that he had previously represented Eric Herschmann and Jared Kushner and Ivanka Trump in unrelated matters.

And in that same conversation, he said, “So if you have any conversations with any of them, especially Eric Herschmann, we want to really work to protect Eric Herschmann.”

And I remember saying sarcastically to him, “Eric can handle himself. Eric has his own resources. Why do I have to protect Eric?” He said, “No, no, no. Like, just to keep everything straight, like, we want to protect Eric with all of this.”

Ms. Cheney. Did he explain what he meant?

Ms. Hutchinson. No. And, to be honest, I didn’t ask. I didn’t have anything with Eric anyway that I felt that I had to protect. And I say that because, at the time of being back in Trump world — this is where I look back and regret some of this, but — like, I did feel a need to protect certain people. But with somebody like Eric, I didn’t feel that need, I didn’t find it necessary.  didn’t — I didn’t think that Eric did anything wrong at the time.

Ms. Cheney. Did it have something to do with NARA?

Ms. Hutchinson. He never really explained to me what it was exactly that we wanted to protect Eric on. I sort of erred on the side of: Maybe he just represents Eric in ongoing litigation, whether it’s financial disclosures or whatever it might be.

And, again, I just didn’t prod too much on that either, because, you know, I was under the impression that Eric helped set me up with Stefan, so I didn’t — I was worried that Stefan would then go back-channel to Eric and — this is my very paranoid brain at the time, but I was worried that if I, you know, pushed this subject a little too much, that he would then go back to Eric Herschmann and say, “Cassidy asked a lot of questions about you, like, why she needs to protect you.” So just didn’t really press the subject too much on that.

And as Hutchinson learned somewhat belatedly, Passantino had business ties to Alex Cannon and, possibly, Herschmann.

So I — “I want to make sure that I’m getting the dates right with these things?

He goes, “No, no, no.” He said, “Look, we want to get you in, get you out.

We’re going to downplay your role. You were a secretary. You had an administrative role. Everyone’s on the same page about this. It’s extremely unfair that they’re” “they’re” being the committee – “that the committee is putting you in this position in the first place. You really have nothing to do with any of this. It’s Mark’s fault that you’re even involved in this. We’re completely happy to be taking care of you now. We had no idea that you weren’t being taken care of this last year. So we’re really happy that you reached back out to us. But the less you remember, the better. I don’t think that you should be filling in any calendars or anything.”

[Redacted] When he said a

Ms. Cheney. Go ahead.

[Redacted] So everyone’s on the same page about this, did he explain who he was referring to when he said “everyone”?

Ms. Hutchinson. He didn’t at that moment. Then there are times throughout my working relationship with Stefan where he said similar things that I asked.

Later that day, sort of put together that the “they” he was referring to then were Justin Clark, Alex Cannon, Eric Herschmann. I think that’s — yeah, think that’s all of them.

Ms. Cheney. And how did you put that together?

Ms. Hutchinson.  Because he — he had said that — Justin — yeah, Justin Clark. Stefan had told me that — towards the end of the day that because he was involved with Elections, LLC, and tangentially, I guess Trump’s PACs, he had law partners. And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners that are involved in Trump world.

That is, Hutchinson testified that Passantino’s alleged effort to coach her testimony was not (necessarily) an effort to protect Trump. It was an effort to protect his business scheme, a business scheme that may have included Herschmann.

In Maggie’s foray into campaign finance journalism, she did not calculate payments to Elections LLC in her discussion of law firms paid by Save America PAC, though it was paid upwards of $400,000 since Trump left office. The last of those payments — for $10,000 — was on December 7, after Trump formalized his 2024 presidential bid. So if Maggie’s right that these payments are illegal, then that $10,000 would be one of the first overt acts in this new criminal exposure.

As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.

But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”

“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”

I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.

Update: Anna Bower informed me that Epshteyn told the Fulton County Grand Jury that he,

served as a legal, communications, and policy advisor to President Trump’s 2020 re-election campaign; and he continues to serve as legal counsel to President Trump to this day.

He cited NY state’s bar rules to argue that his ethical obligations extend well beyond attorney-client privilege.

In contrast, the client confidences that Mr. Epshteyn is required to safeguard as a New York-licensed attorney pursuant to Rule 1.6 of the New York Rules of Professional Conduct (“NYRPC”)4 reach a broader and less easily identifiable array of communications and information. Like its corollary rule in virtually every U.S. jurisdiction, NYRPC 1.6 provides that “[a] lawyer shall not knowingly reveal confidential information … or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person” absent client consent or “to comply with other law or court order.” NYRPC l.6(a)-(b). The rule defines “Confidential Information” to mean “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or ( c) information that the client has requested be kept confidential.” NYRPC 1.6(a)(3). The duty to preserve client confidences under Rule 1.6 is much broader that the attorney-client privilege, it includes any information gained during the representation regardless of its nature or source, and it necessarily includes information that is not subject to any other privilege or protection, provided that it is not already generally known in the community.

Epshteyn has always had a far stronger case he was working in a legal role starting in April or May of last year than while he was on the campaign (where he was described by other witnesses, like Jenna Ellis was also described, as playing a PR role).

In public comments from Emily Kohrs, she suggested that Rudy, who was barred in NY still when he represented Trump during the 2020 election, provided thoughtful question by question answers about whether he could answer questions.

The Primary Thing Eric Herschmann Remembers from January 6 Is that Cassidy Hutchinson Was Wrong about That Note

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There’s a funny detail in Cassidy Hutchinson’s September 14 January 6 Committee testimony.

She claimed that on May 20, after a third appearance before the committee and after firing her lawyer, Stefan Passantino earlier that day, Eric Herschmann called her and told her, “I didn’t know you remembered so much.”

And Eric called me that evening, and I just apologized. And he was like, you know, “I didn’t know that you remembered so much, Cassidy. Mark [Meadows] really put you in bad positions. I’m really sorry that he didn’t take care of you better. You never should’ve had to testify to any of that. That’s all of our jobs. I don’t know why they didn’t ask us, they asked you instead.”

And I was just like, “Look, Eric like, it is what it is.” And he kind of talked for — it was probably a 30-minute conversation.

“Remembered,” she described Herschmann saying, not “knew” or “witnessed.”

It’s an interesting word choice, if accurate, because in Herschmann’s testimony before the committee back on April 6 (and so after Passantino had sat through Hutchinson’s first two appearances before the committee, on February 23 and March 7), he didn’t remember much.

The word “remember” shows up (sometimes used as part of a question to him) 482 times in the transcript. The word “recall” shows up 166 times. The word “recollection” comes up 24 times.

Among the things Herschmann professed to have little memory of were the fake electors casting votes in December, Trump’s December 19 tweet announcing the January 6 event,  the date of a key January 5 meeting involving Marc Short and John Eastman, the details (beyond an “intellectual discussion about [John] Eastman”) of a call he had with Rudy Giuliani — out of the blue! — on the morning of the 6th, what he said to Pat Philbin to try to convince him to join him at the rally before proceeding on his own, what Trump said to him while waiting to speak at the Ellipse (Herschmann invoked Executive Privilege to cover a call between him and Trump at 10:50PM that day), any claims in Trump’s Ellipse speech that Herschmann knew to be bullshit,  what Mark Meadows, Dan Scavino, and Trump were talking about in the dining room after returning from the Ellipse, and whether he had auto-delete set for his texts.

What Herschmann did recall — aside from the times he screamed at Jenna Ellis, Sidney Powell, and John Eastman, which made him a hero of the January 6 Committee hearings — was writing a note calling on people to leave the Capitol.

Q So do you recall, did you tell them what was happening or did they seem to already be aware?

A I don’t remember. I know I wrote out something, but I don’t remember if they were aware when they came back or I told them when I came in. I just don’t remember that detail.

Q And why did you write something out?

A I thought we should put out a statement.

Q Okay. Do you remember what you wrote?

A I don’t remember the exact words, but I remember going down to Mark’s outer office, chief of staff, and asking someone there to get me something to write on. And normally, if I had to — if I was grabbing something, it would be the chief of staff.

They have one of those cards, I don’t know, it’s a rectangular card that says chief of staff.

Q So this was a handwritten note?

A It was a handwritten note, yeah.

Q Okay. Let’s go — we’ll pull up Exhibit 11. Is that the note you’re referring to?

A That is the note.

Q Okay. And what did you do with the note?

A The actual physical note.

Q Yeah. Did you give it to the President?

A No, I didn’t give it to the President. I may have given it to Meadows, but I didn’t hand it to the President. I would have — I think the reason I edited “illegally,” is someone had a discussion, I don’t remember who it was — and it wasn’t the President, but someone had the discussion, how do we establish it’s illegally — that they entered illegally? Which I thought, okay, I don’t want to say overlawyering, but overlawyering, in my view. So I crossed out “illegally” and said “without proper authority.” Okay, that solves that issue, right? And I thought we should put out the statement.

Q Did you tell the President that he should put out a statement?

A Generally, I had discussions with the President about putting out a statement. I don’t remember if I read this or I handed it to Mark, or Mark and I discussed it in front of the President. I just don’t remember that detail. But this was my first reaction to seeing the violence and what I thought the White House should do.

Q Did the President have a reaction?

A I don’t recall his reaction, but obviously he didn’t put out this statement. [my emphasis]

It’s funny that that was one of the few things Herschmann recalled on April 4, because after Hutchinson testified in her May 17 testimony to remembering a whole bunch of things that Herschmann couldn’t remember (including a discussion between Meadows, Herschmann, and Pat Cipollone about Trump’s comment that Mike Pence might deserve to be hung), she went on to publicly testify, on June 28, that she physically wrote that note as Meadows dictated it, with Herschmann chiming into to offer the alternative, “without proper authority.”

LIZ CHENEY: Now let’s look at just one example of what some senior advisers to the president were urging. Ms. Hutchinson, could you look at the exhibit that we’re showing on the screen now? Have you seen this note before?

CASSIDY HUTCHINSON: That’s a note that I wrote at the direction of the chief of staff on January 6th, likely around 3:00.

LIZ CHENEY: And it’s written on a chief of staff note card, but that’s your handwriting, Ms. Hutchinson?

CASSIDY HUTCHINSON: That’s my handwriting.

LIZ CHENEY: And why did you write this note?

CASSIDY HUTCHINSON: The chief of staff was in a meeting with Eric Hirschman and potentially Mr. Philbin, and they had rushed out of the office fairly quickly. Mark had handed me the note card with one of his pens, and sort of dictating a statement for the president to potentially put out.

LIZ CHENEY: And — no, I’m sorry. Go ahead.

CASSIDY HUTCHINSON: That’s Ok. There are two phrases on there, one illegal and then one without proper authority. The illegal phrase was the one that Mr. Meadows had dictated to me. Mr. Herschmann had chimed in and said also put without legal authority. There should have been a slash between the two phrases. It was an — an or if the president had opted to put one of those statements out. Evidently he didn’t. Later that afternoon, Mark came back from the Oval Dining Room and put the palm card on my desk with illegally crossed out, but said we didn’t need to take further action on that statement.

LIZ CHENEY: So, to your knowledge, this statement was never issued.

CASSIDY HUTCHINSON: It was — to my knowledge, it was never issued.

The difference between Herschmann and Meadows dictating the note to Hutchinson (who is not once mentioned in Herschmann’s testimony) and Herschmann writing it himself is negligible in the larger story, so he could have left it well enough alone. Especially given the number of times Herschmann claimed not to remember details of what happened with the note, such as how it was presented to Trump or how the then-President responded.

But Herschmann didn’t leave it well enough alone. Shortly after Hutchinson’s public testimony, Herschmann’s spox put out a formal statement claiming he had written the note.

“The handwritten note that Cassidy Hutchinson testified was written by her was in fact written by Eric Herschmann on January 6, 2021,” a spokesperson for Herschmann told ABC News Tuesday evening.

“All sources with direct knowledge and law enforcement have and will confirm that it was written by Mr. Herschmann,” the spokesperson said.

This statement became one of two bases — along with the pushback from people in the vicinity of Tony Ornato about the Beast story — on which Hutchinson’s credibility was attacked in the days after her testimony.

The discrepancy on the note could be just that, a discrepancy. All of Herschmann’s claimed memory lapses might one day come to be refreshed.

The dispute, however minor, between Herschmann and Hutchinson is noteworthy for several reasons though.

First, Hutchinson told the committee that the first time she met with Passantino, after being referred by Herschmann via Alex Cannon, she asked him if he was representing anyone else before the Committee. Passantino wouldn’t answer, but according to Hutchinson, he did say he had represented Eric Herschmann, among others, in the past, and that “we really want to work to protect Eric Herschmann.”

Ms. Hutchinson. ~ You previously asked about individuals he had raised with me. In my conversation with him earlier that afternoon, when I [sic] asking him about the engagement letter, I did also ask Stefan if he was representing any other January 6th clients. And he had said, “No one that I believe that you would have any conflicts with.”

And I said, “Would you mind letting me know?” Now, again, to this day, I still don’t know if that’s really a kosher question to ask an attorney, if they can share their clients with me, but I wanted to make sure that there actually weren’t any conflicts, because I didn’t have anything in writing.

He wouldn’t tell me anybody he was representing before the January 6th Committee, but he did tell me that he had previously represented Eric Herschmann and Jared Kushner and Ivanka Trump in unrelated matters.

And in that same conversation, he said, “So if you have any conversations with any of them, especially Eric Herschmann, we want to really work to protect Eric Herschmann.”

And| I remember saying sarcastically to him, “Eric can handle himself. Eric has his own resources. Why do I have to protect Eric?” He said, “No, no, no. Like, just to keep everything straight, like, we want to protect Eric with all of this.”

Ms. Cheney. Did he explain what he meant?

Ms. Hutchinson. No. And, to be honest, I didn’t ask. I didn’t have anything with Eric anyway that I felt that I had to protect. And I say that because, at the time of being back in Trump world — this is where I look back and regret some of this, but — like, I did feel a need to protect certain people. But with somebody like Eric, I didn’t feel that need, I didn’t find it necessary.  didn’t — I didn’t think that Eric did anything wrong at the time.

Ms. Cheney. Did it have something to do with NARA?

Ms. Hutchinson. He never really explained to me what it was exactly that we wanted to protect Eric on. I sort of erred on the side of: Maybe he just represents Eric in ongoing litigation, whether it’s financial disclosures or whatever it might be.

And, again, I just didn’t prod too much on that either, because, you know, I was under the impression that Eric helped set me up with Stefan, so I didn’t — I was worried that Stefan would then go back-channel to Eric and — this is my very paranoid brain at the time, but I was worried that if I, you know, pushed this subject a little too much, that he would then go back to Eric Herschmann and say, “Cassidy asked a lot of questions about you, like, why she needs to protect you.” So just didn’t really press the subject too much on that.

By the end of that first day, per her testimony, she learned that Passantino was business partners on the election-related business Alex Cannon had with Justin Clark and, possibly, Herschmann.

S0 I — “I want to make sure that I’m getting the dates right with these things?

He goes, “No, no, no.” He said, “Look, we want to get you in, get you out.

We’re going to downplay your role. You were a secretary. You had an administrative role. Everyone’s on the same page about this. It’s extremely unfair that they’re” “they’re” being the committee – “that the committee is putting you in this position in the first place. You really have nothing to do with any of this. It’s Mark’s fault that you’re even involved in this. We’re completely happy to be taking care of you now. We had no idea that you weren’t being taken care of this last year. So we’re really happy that you reached back out to us. But the less you remember, the better. I don’t think that you should be filling in any calendars or anything.”

[Redacted] When he said a

Ms. Cheney. Go ahead.

[Redacted] So everyone’s on the same page about this, did he explain who he was referring to when he said “everyone”?

Ms. Hutchinson. He didn’t at that moment. Then there are times throughout my working relationship with Stefan where he said similar things that I asked.

Later that day, sort of put together that the “they” he was referring to then were Justin Clark, Alex Cannon, Eric Herschmann. I think that’s — yeah, think that’s all of them.

Ms. Cheney. And how did you put that together?

Ms. Hutchinson.  Because he — he had said that — Justin — yeah, Justin Clark. Stefan had told me that — towards the end of the day that because he was involved with Elections, LLC, and tangentially, I guess Trump’s PACs, he had law partners. And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners that are involved in Trump world.

Then, after her third interview — the one in which Hutchinson remembered a lot of details about the response to the attack that Herschmann had already testified to not remembering — Passantino responded by confirming to Maggie Haberman that Meadows’ former aide had testified, and telling Meadows’ lawyers, his partners, and Herschmann about her testimony, all in defiance of Hutchinson’s wishes, according to her testimony.

Ms. Cheney. Did he also – so you said that he talked to Terwilliger, to his law partners. Did he also talk to Herschmann?

Ms. Hutchinson. He did. I’m sorry. I neglected to mention that. He –as we were leaving that evening, I got an Uber, and he walked me to my Uber, and he reiterated that he was going to have a conversation with his law partners. He was going back to Michael Best, and he said that he was going to have a conversation with his law partners that night.

And he asked — he asked — I forget how he said it. He said something to the effect of, “I think its best if we tell Eric about this, too. He’s not technically my law partner, but I think Eric deserves to know some of this, too.”

And I said, “Look, at this point, one, I kind of know you’re going to do what you’re going to do.” And I said, “Whatever you think is best”

That’s what led to the 30-minute call from Herschmann, the one where he expressed surprise that she remembered so much.

The discrepancy looks somewhat different give Hutchinson’s claim that Passantino told her, from the start, “they” were trying to protect Herschmann.

Particularly given that the transcripts reveal just how amorphous Herschmann’s job was. He has often been referred to as part of the White House Counsel’s office. I’ve done it. General Keith Kellogg did it in his interview with the Committee, which is why, Kellogg explained, he was so surprised that Herschmann sat silent in the Oval Office as Trump told Mike Pence he could reject electors from contested states, some details of which were something else Herschmann claimed not to remember.

Herschmann’s job was providing legal advice (he was also involved in Jared Kushner’s portfolio of pardons and Middle East negotiations, though when asked, he was coy about his relationship with the kids: “I had met them beforehand,” he said) And he did report through Pat Cipollone. But he was not part of the White House Counsel’s Office.

It’s almost like he was an in-house minder, paid by taxpayers, installed by the family or Bill Barr for the last five months of the presidency.

While working at the White House, Herschmann teamed up with Passantino and Don Jr’s buddy, Arthur Schwartz, to pitch the first Hunter Biden smears to the WSJ, even before Rudy disseminated the “laptop.”

Yet even in that short time period, Herschmann became a key gatekeeper for the President, ostensibly to prevent him from getting outrageous pitches.

Which makes a key discrepancy between Pat Cipollone and Herschmann’s testimony rather interesting, particularly given Passantino’s concern (at least per Hutchinson’s testimony) with protecting Herschmann.

Herschmann claimed that the reason Cipollone wasn’t in that meeting in the Oval Office on January 6, sometime after he spoke with Rudy out of the blue and at which he didn’t remember the Joint Session of Congress coming up, is because Cipollone hadn’t arrived to work yet. In fact, Herschmann remembered that even after the Oval Office meeting, Cipollone still wasn’t in the office; Herschmann described talking to just Pat Philbin before deciding to go, without prior planning, to the Ellipse.

I don’t remember, I don’t think Cipollone was in the office yet, but Philbin was.

The way Cipollone remembered it is that he came to the Oval Office before the meeting, but Herschmann specifically told him he didn’t need to participate — it was just family.

I remember Eric Herschmann was standing there and came and my recollection is he came to me as I was standing in the door and said, this is — this is family — just kind of –you don’t need to be here. And said, fine. And believe I went back to my office at that point.

And so, as Herschmann described, when he was in the Oval Office not hearing a discussion about the Joint Session of Congress, he was just on a social visit, just saying hello.

Q You were not there for any legal purpose. It was just, you indicated, sort of a social gathering?

A Yeah, when I first came in, it was just saying hello.

I’m sure that relative veracity of these claims are all being weighed by Jack Smith and his prosecution team. Indeed, after these events, DOJ started adding Passantino’s name to subpoenas.

I’m interested in one more detail about it. Immediately after Hutchinson testified about her claims of obstruction to J6C on September 14 and 15 (testimony which should have been secret), Maggie Haberman came out with two stories pitching Herschmann — who worked so closely on Jared’s portfolio at the White House — in positive light. On September 16, Maggie Haberman reported on Herschmann’s demand to get an Executive Privilege invocation in writing just in time to avoid testifying sometime that month. In it, Herschmann got to impugn Boris Epshteyn’s legal ability, just like he was made a star of the J6C hearings by yelling at Eastman and Powell.

The claim that Herschmann was invoking Executive Privilege is particularly interesting given two things he said in his J6C interview. First, he said that “based on his understanding” with the two Pats, he would not invoke privilege, at least with respect to Trump’s call to Mike Pence on January 6.

Q And could you hear the Vice President, or only hear the President’s end?

A Only hear the President’s end.

Q Okay. And what did you hear him say?

A Well, I guess from this, based on my understanding with Pat Philbin and Pat Cipollone — I don’t want to assert privilege on that as much as tell you that, at some point, it started off as a calmer tone and everything, and then became heated.

Given his claimed status as a social visitor and his role as an aide giving legal advice reporting to, but not part of, the White House Counsel’s Office, I’m curious what privilege he would claim.

Almost immediately thereafter, Herschmann asked to review with his own lawyers (former colleagues of his from Marc Kasowitz’ firm who also repped Ivanka, Jared, Ivanka Trump’s Chief of Staff Julie Radford and aide Rachel Craddock, and two of Trump’s Executive Assistants, Molly Michael and Austin Ferrer, as well as Alex Cannon, the latter of whom was represented pro bono), in part, whether “if I don’t recall something” it’s invoking a privilege.

Q  Okay. Others have said that President Trump said, I made the wrong decision four years ago?

Do you recall that.

A Let me — can we take a two-second break, so I get the privilege down in my head? Because if I don’t recall something, I presume it’s not invoking anything, right?

So can we take a five-minute break, so I can get my own ground rules covered.

Herschmann did, as noted, invoke privilege to cover one of two private conversations he had with Trump that day, one after the attack on the Capitol. But that was it. The single solitary thing all day he invoked privilege over. And yet somehow, there would be a lengthy discussion about privilege before he appeared before a grand jury.

The reason I find these discussions of privilege so interesting, though, is because while we know that the two Pats testified before a grand jury after Beryl Howell overruled Trump’s privilege invocation, we’ve never heard whether Herschmann did.

That’s relevant, too, because (like Alex Cannon), Herschmann also reportedly has a role in the stolen documents case. A few days after the story on privilege, on September 19, Haberman reported that Herschmann had warned Trump to return his stolen documents at some otherwise vague meeting in 2021.

As Hutchinson’s testimony and years of past practice make clear, sometimes people share stories with Maggie as a way to telegraph what has gone on in an investigation.

Trump’s Shaky Privilege to Hide His Pence Pressure

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CNN, NYT, and WaPo have now reported on why Evan Corcoran, John Rowley, and Tim Parlatore were at Prettyman Courthouse on Thursday afternoon. They were trying to support Trump’s invocation of Executive Privilege to limit testimony about his own actions and words.

CNN first confirmed the reason.

Former President Donald Trump’s attorneys are fighting a secret court battle to block a federal grand jury from gathering information from an expanding circle of close Trump aides about his efforts to overturn the 2020 election, people briefed on the matter told CNN.

The high-stakes legal dispute – which included the appearance of three attorneys representing Trump at the Washington, DC, federal courthouse on Thursday afternoon – is the most aggressive step taken by the former President to assert executive and attorney-client privileges in order to prevent some witnesses from sharing information in the criminal investigation events surrounding January 6, 2021.

The court fight over privilege, which has not been previously reported and is under seal, is a turning point for Trump’s post-presidency legal woes.

WaPo suggests this is primarily and NYT reports it is at least in part about getting Marc Short and Greg Jacob’s testimony.

One person familiar with the matter said that the dispute concerned the testimony of two top aides to former vice president Mike Pence — his former chief of staff, Marc Short, and former counsel, Greg Jacob. The men appeared before the grand jury in July and answered some, but not all, questions, based on Trump’s assertion of privilege, people familiar with the matter said.

But for the five people known to be involved — Short and Jacob, plus former White House Counsels Pat Cipollone, Patrick Philbin, and Eric Herschmann — the privilege claims would be closely related. Short and Jacob have refused to disclose conversations they witnessed between Trump and Mike Pence. The Two Pats and (to a lesser extent) Herschmann have refused to tell what they said to or witnessed Trump say directly.

Based on their January 6 Committee testimony, we know some very specific details about what the men have hid via privilege claims:

  • Greg Jacob declined to describe precisely how, in an in-person meeting on January 4 including John Eastman, Pence rejected Trump’s pressure to refuse to certify the vote certification
  • Pence’s aides had stepped out of the room when Pence spoke to Trump by phone on the morning of January 6; numerous people witnessed (and told the Committee) about the Trump side of it, but no one is known to have shared Pence’s side of it
  • Cipollone refused to describe how he or the other White House Counsels advised Trump to make a statement asking the rioters to leave the Capitol
  • None of the White House Counsels described precisely what they said to Trump about his Tweet focusing on Pence
  • Cipollone wouldn’t describe the conversations he had with Trump about rioters chanting “hang Mike Pence”
  • Cipollone refused to say that Trump was among the people at the White House who didn’t want rioters to leave the Capitol

There are surely other conversations of interest. If Cipollone shared directly with Trump some version of his advice that, as Cassidy Hutchinson described, if Trump went to the Capitol, “We’re going to get charged with every crime imaginable if we make that movement happen,” including obstruction of the vote certification and incitement, it would be crucial evidence in any obstruction charge against Trump. I’m hoping, too, that the White House Counsels get asked about Trump’s offers of pardons to those who participated in his coup attempt.

Parlatore’s involvement in the Prettyman event may reflect more junior staffers who invoked privilege too.

The three outlets vary about how clearly they describe something that is obvious: If DOJ is moving to overcome privilege claims invoked to protect what specific advice Trump got about the legality or illegality of his actions leading up to and on January 6, they’re doing so with an eye towards charging Trump, not because they want to see whether Pat Cipollone was sufficiently alarmed about the implications of an attack on the Capitol. And just WaPo notes that this privilege claim — in the context of a criminal investigation and made within the Executive Branch, rather than (as with the January 6 Committee) between two branches of government — should be an easier question for SCOTUS than the decision authorizing the Archives to share Trump’s communications with the Committee.

Three more dynamics deserve mention. First, Marc Short, the one non-counsel known to be affected by this privilege fight, is represented by Emmet Flood, perhaps the lawyer who has best protected the prerogatives of the Presidency ever since he helped Bill Clinton avoid conviction with impeachment and helped George W Bush (and Dick Cheney) close out their Administration without bigger legal consequences. Flood may not even care about Trump at this point, but he cares about protecting the Presidency.

But the shenanigans Trump engaged in — instructing witnesses to invoke Executive Privilege without formally invoking it — may shift the posture of any dispute. DOJ was always going to come back and push for more testimony. But after much haranguing, Herschmann seems to have forced Trump to do what he had not before: put something in writing. That may either force Trump to go back and do so for the others, or may allow DOJ to get a privilege waiver for Herschmann that would implicate the others. That’s important because Herschmann might not wait around for any appeals of privilege waivers. All this is largely happening behind closed doors, but it may matter that at the end of this process, Herschmann forced Trump’s hand and that may give DOJ something more tangible to challenge before Chief Judge Beryl Howell. I sort of suspect that may have been the point.

Finally, if and when DOJ wins this fight (it should not be a close contest, and won’t be at least for Howell), it gets DOJ one step closer to considering whether they need Pence himself to testify.

DOJ is making an effort to get what — we know from public privilege invocations — includes a lot of damning evidence against Trump involving Pence. And has been clear since at least January, Trump’s pressure on Pence and his efforts to get the mob to pressure Pence tie the coup attempt and the attack on the Capitol together.

Only Eric Herschmann (and Maybe Christina Bobb) Learned the Steve Bannon Lesson

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There’s a lot to unpack in this NYT story about the in-fighting on Trump’s legal team.

It confirms that prosecutors have asked to interview Christina Bobb and notes that she “added language to” the declaration that Evan Corcoran wrote about his search for documents “to make it less ironclad a declaration before signing it.” (If I had to guess, I’d say this pertains to the limits on the search having taken place at Mar-a-Lago.) The story proclaims ignorance about whether Bobb actually has testified. But the shift in how DOJ has discussed Corcoran — describing him claiming he “was advised” about certain topics in the search warrant affidavit, but then stating he “represented” those same topics at the June 3 meeting in their response to Trump’s request for a Special Master — is consistent with Bobb refusing to be made the fall-gal. DOJ’s assertion that Trump’s lawyers might be “witnesses,” plural, in their motion for a stay to the 11th Circuit also suggests some inside knowledge about things that another Trump lawyer may have done (note, the reference in the affidavit to Corcoran as FPOTUS Counsel 1 suggests another Trump lawyer is described in it later in the affidavit).

NYT also describes Eric Herschmann’s famously candid opinions, this time about the value of Boris Epshteyn’s legal advice.

“I certainly am not relying on any legal analysis from either of you [Corcoran and John Rowley] or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “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.”

I have been wondering whether Epshteyn, in particular, were just exploiting Trump for his own objectives before he moves onto some other convenient vehicle for extremism after Trump is crushed by legal troubles inadequately defended, and this anecdote would be consistent with that.

But the larger story describes how Herschmann refused to simply just bullshit his way through privilege invocations before a January 6 grand jury. The story is based on an email thread in which Corcoran — who helped Steve Bannon get convicted of contempt — attempted to persuade Herschmann to follow the exact same approach to testifying that Bannon (and John Rowley client Peter Navarro) adopted with the January 6 Committee: To refuse to testify based off a claim of Executive Privilege that Trump had not formally invoked.

Incidentally, that’s the very same approach Trump has used before Aileen Cannon. Thus far it has worked like a charm for her. It has been less successful with every other investigative body.

In fact, Herschmann seems to have made precisely the same point I have in the past, to Corcoran (and Rowley): Executive Privilege doesn’t work the way Corcoran claimed it did when he was busy shepherding Bannon to a contempt conviction.

In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.

So after repeated insistence that he get a real privilege invocation and after refusing to discuss these things without a documentary trail, the morning before Herschmann would have testified, Trump’s lawyers acceded to Herschmann’s demand for a proper invocation of privilege.

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.

[snip]

Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

Mr. Epshteyn declined to respond to a request for comment.

Nearly four weeks after Mr. Herschmann first asked for an instruction letter and for Mr. Trump’s lawyers to seek a court order invoking a privilege claim, the emails show that he received notification from the lawyers — in the early morning hours of the day he was scheduled to testify — that they had finally done as he asked. [my emphasis]

So let’s talk about the timing of all this — and also about how Glenn Thrush, who is a politics reporter who knows fuckall about DOJ, keeps getting scoops about details that would be known to those being investigated, including this email chain that would be protected by the same principles of attorney-client privilege that Corcoran claimed to be vigorously protecting in it.

The emails were obtained by The New York Times from a person who was not on the thread of correspondence. Mr. Herschmann declined to comment.

According to a slew of reports, Herschmann was first subpoenaed around August 15. Given the timeline laid out in the story, describing that Herschmann asked for four weeks before getting a formal privilege letter, it would suggest he didn’t get a formal privilege invocation until around September 12 — days ago, perhaps even more recently than that.

According to an equally coordinated set of stories, the two Pats — Cipollone and Philbin, who happen to be law partners — were subpoenaed earlier than that. Those reports, which came out on August 3, eleven days before the stories about Herschmann being subpoenaed, described how there was some discussion about how to handle Executive Privilege claims.

A federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election, sources with direct knowledge of the matter told ABC News.

The sources told ABC News that attorneys for Cipollone — like they did with the House select committee investigating the Jan. 6 attack on the Capitol — are expected to engage in negotiations around any appearance, while weighing concerns regarding potential claims of executive privilege.

As ABC pointed out, before he testified to the January 6 Committee, Cipollone made a similarly big fuss about Executive Privilege.

But when he testified to the Committee, Cipollone made specious privilege invocations to avoid testifying about the former President cheering violence, including violence directed at his Vice President.

UNKNOWN: My question is exactly that, that it sounds like you from the very outset of violence at the Capitol, right around 2:00, were pushing for a strong statement that people should leave the Capitol. Is that right?

PAT CIPOLLONE: I was, and others were as well.

UNKNOWN: Pat, you said that you expressed your opinion forcefully. Could you tell us exactly how you did that?

PAT CIPOLLONE: Yeah, I can’t — I don’t have, you know, I have to — on the privilege issue, I can’t talk about conversations with the President, but I can generically say that I said, you know, people need to be told, there needs to be a public announcement fast that they need to leave the Capitol.

[snip]

UNKNOWN: Do you remember any discussion at any point during the day about rioters at the Capitol chanting hang Mike Pence?

PAT CIPOLLONE: Yes, I remember — I remember hearing that about that, yes. I don’t know if I observed that myself on TV.

UNKNOWN: I’m just curious. I understand the — the privilege line you’ve drawn, but do you remember what you can share with us about the discussion about those chants, the hang Mike Pence chants?

PAT CIPOLLONE: I can tell you my view of that.

UNKNOWN: Yeah, please.

PAT CIPOLLONE: My view of that is that is outrageous. And for anyone to suggest such a thing of the vice president of the United States, for people in that crowd to be chanting that I thought was terrible. I thought it was outrageous and wrong, and I expressed that very clearly.

ADAM SCHIFF: With respect to your conversations with Mr. Meadows, though, did you specifically raise your concern over the vice president with him, and — and how did he respond?

PAT CIPOLLONE: I believe I raised the concern about the vice president, and I — and I — again, the nature of his response, without recalling exactly was he — you know, people were doing all that they could.

ADAM SCHIFF: And — and what about the president? Did he indicate whether he thought the president was doing what needed to be done to protect the vice president?

UNKNOWN: Privilege. You have to assert it. That question would —

PAT CIPOLLONE: That would call for — I’m being instructed on privilege.

[snip]

LIZ CHENEY: And who on the staff did not want people to leave the Capitol?

PAT CIPOLLONE: On the staff?

LIZ CHENEY: In the White House, how about?

PAT CIPOLLONE: I don’t — I — I can’t think of anybody, you know, on that day who didn’t want people to get out of the — the Capitol once the — you know, particularly once the violence started, no. I mean —

ADAM SCHIFF: What about the president?

LIZ CHENEY: Yeah.

PAT CIPOLLONE: She said the staff, so I answered.

LIZ CHENEY: No, I said in the White House.

PAT CIPOLLONE: Oh, I’m sorry. I — I apologize. I thought you said who — who else on the staff. I — I — I can’t reveal communications, but obviously I think, you know, — yeah. [my emphasis]

Cipollone invoked Executive Privilege to avoid revealing details about Trump cheering the violence directed at his Vice President and hoping that rioters would stay at the Capitol. Cipollone made those privilege claims on July 8, two months before the rough date when, after much badgering, Herschmann succeeded in getting a letter invoking privilege from Trump’s lawyers.

That’s the only known formal invocation of Executive Privilege Trump has put in writing regarding January 6.

And if Herschmann got that letter on September 12, he would have gotten it after the two Pats testified in one-two fashion on September 2.

Email chains like this — by any measure, clearly privileged — usually get leaked (to politics reporters) when legally exposed individuals are trying to telegraph to each other important details about their testimony.

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.

And Pat Cipollone is a direct and credible witness to Trump’s cheers of violence directed at his Vice President.

The effort to get witnesses to invoke Executive Privilege without any formal invocation that Judge Howell would review is not new. Trump has been pursuing this for a year, first with Justin Clark telling Bannon to bullshit his way through privilege claims with the January 6 Committee, then with unnamed lawyers persuading Cipollone to bullshit his way through testimony to the January 6 Committee, and most recently to Evan Corcoran — who had a front row seat to see that not even former Clarence Thomas clerk Carl Nichols would buy such bullshit — continuing to pursue such an approach even after it led directly to Bannon’s conviction.

Eric Herschmann, at least (and possibly also Christina Bobb) has learned the lesson of Steve Bannon.

One Big Potentially Pending Question: What Happens to Trump’s Impeachment 1.0 Papers?

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There’s a comment in DOJ’s response to Judge Aileen Cannon’s order to file an update by tomorrow that caught my attention. DOJ suggests there may be no dispute about whether the stuff it has been pursuing a review of is really privileged.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.

As I laid out here (and as virtually all journalists are still getting wrong), DOJ used a privilege team for the search on August 8. At least according to Fox News, all the potentially privileged material was inventoried on what I call the SSA receipt (because it was signed by the Supervisory Special Agent, rather than the Special Agent).

I surmised and DOJ has now confirmed that DOJ has been “in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.” That means DOJ is using one of these methods:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

Option c is effectively to invite Trump to provide feedback on the privilege issues, an option that Evan Corcoran has told us DOJ specifically rejected  back on august 11.

Option b is to simply not access the materials; since FBI seized it, it’s likely they saw something on August 8 that made them want to access the materials.

So we can be fairly sure that DOJ is pursuing Option a to get this material, an ex parte review by a judge — the implication is Bruce Reinhart, but it’s possible they’ve involved someone who’s more senior, such as DC Chief Judge Beryl Howell (who is presiding over the grand jury conducting this investigation) or SDFL Chief Judge Cecilia Altonaga — to see whether it is attorney-client privileged.

I want to talk about three categories of documents that might appear to be covered by attorney-client privilege that a judge might otherwise decide are not. DOJ’s suggestion that there may not be a dispute reminds me of how, during the privilege review of Michael Cohen’s phones in 2018, as soon as Judge Kimba Woods ruled that any fight over privilege would have to be public, Trump slithered away and stopped fighting to keep the recordings about hush payments that Cohen kept on his phone away from prosecutors.

In other words, particularly since DOJ completely bypassed any involvement from Trump, I suspect DOJ believes that the materials currently under ex parte review by Reinhart or some other judge may be crime-fraud excepted.

Consider the kinds of materials that, under the warrant, could be seized:

  • Any Presidential or government record created during Trump’s term, which would include most if not all of the subcategory of documents bearing classification marks
  • Documents stored along with (that is, perhaps in the same storage closet) documents bearing classification marks
  • Evidence of the knowing alteration, destruction, or concealment of government and/or Presidential records — basically, of obstruction

If it remains true that all documents with potentially privileged materials are on the SSA receipt, it is likely that there were a chunk of documents — labeled just “documents” seized from his office (where the privilege team did all the initial search) — as well as five boxes that by description were stored with documents bearing classified markings, probably found in the storage room and handed off to the filter team for some reason.

The most obvious set of materials that would appear privileged but might be deemed by a judge to be crime-fraud excepted would pertain to obstruction: Materials that post-date Trump’s Presidency involving lawyers (either the former White House counsels who attempted to get him to return the documents) or his current attorneys, especially including the effort to refuse NARA and DOJ’s requests and/or to provide bullshit information in response to one or more subpoenas. That’s what those documents seized from Trump’s office might consist of.

Another category of documents might include materials involving non-governmental lawyers — Rudy Giuliani or John Eastman are likely possibilities — that appeared on official government records. These materials might pertain to January 6. Particularly given that SCOTUS approved the waived privilege claims over Trump’s governmental files, those seem like an easy decision.

A third category of information pertains to advice White House counsel lawyers gave Trump while still in office outside the context of a legal proceeding (different from the advice the same former White House counsels gave during the extended fight with NARA) that he wants to keep from DOJ. The Bill Clinton precedent would say that NARA at least gets this information, and if there is a legal basis for the FBI to obtain it (such as that it includes classified information, as the White House counsel response to the Zelenskyy-Trump call would be), then it would seem FBI would be able to obtain it. Given Trump’s bid to claim Executive Privilege over certain information, I wouldn’t be surprised if this were a heated issue.

The one set of documents that I think does raise real concerns, though, is Trump’s defense during Impeachment 1.0. At least three members of the White House Counsel staff were part of Trump’s defense team: Pat Cipollone, Patrick Philbin, and Michael Purpua. Taxpayers paid their salaries during the period when they were defending Trump, and so under the Clinton precedent, any files involving them would seem to be government documents covered by the Presidential Records Act. But Trump also had some talking heads — like Alan Dershowitz and Pam Bondi — and one of the real private attorneys who represented him in the Russian investigation, Jane Raskin. Trump’s communications with the later two groups should be privileged.

I’ve asked experts on Richard Nixon and Bill Clinton what happened with their impeachment records. Best as I can tell, many of those records are in the Archives. But I’m still not sure how the special case of Trump’s impeachment defense would be treated.

Update: Removed Eric Herschmann from the list of WH Counsels who represented Trump in impeachment. He was still in private practice then.