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.
How the fight is resolved could determine whether prosecutors can tear down the firewall Trump has tried to keep around his conversations in the West Wing and with attorneys he spoke to as he sought to overturn the 2020 election and they worked to help him hold onto the presidency.
Other former senior Trump White House officials, including former White House counsel Pat Cipollone and his deputy Patrick Philbin, appeared before the grand jury in recent weeks, after negotiating specific subjects they would decline to answer question about, because of Trump’s privilege claims.
Herschmann himself is not in court fighting the subpoena. Instead, Trump’s lawyers are asking a judge to recognize the former President’s privilege claims and the right to confidentiality around his dealings. Herschmann’s grand jury testimony has been postponed.
It’s still unknown if prosecutors want to use the information for possible cases against Trump or others.
Trump’s lawyers have expected the Justice Department to eventually seek a judge’s order to compel additional testimony from White House witnesses, CNN has previously reported.
The Justice Department didn’t respond to a request for comment.
Fight playing out under seal
Under grand jury secrecy rules, the legal dispute is under seal, with no public documents to show the state of play.
The Justice Department has been girding for a legal challenge along these lines for months, CNN previously reported.
In addition to Cipollone and Philbin, former vice presidential aides Greg Jacob and Marc Short have appeared before the grand jury in the DC courthouse and declined to answer some questions because of Trump’s executive privilege claims, CNN previously reported.
On Thursday afternoon, Evan Corcoran, Tim Parlatore and John Rowley, who work together representing Trump in the January 6 probe, exited the courthouse accompanied by a law clerk.
Parlatore told reporters he was there “representing a client” but would provide no further details. The other lawyers declined to comment.
The Trump legal team’s push to broadly assert privilege has been subject of disagreement among its lawyers over legal strategy, people briefed on the matter said.
Herschmann received a grand jury subpoena for testimony and documents related to January 6 weeks ago. But he was irked before his court date by what he saw as vague guidance from Trump lawyers not to share information, people briefed on the matter say.
“A letter directive from President Trump without a court order would not be sufficient. I don’t understand your statement that the chief judge will decide the issue,” Herschmann wrote. He then raised concerns about DOJ seeking to compel his testimony if he refused to testify to certain questions.
Herschmann previously testified to the House committee about what he saw at the White House around January 6.
The outspoken lawyer expressed concerns that the Trump team’s approach potentially put him at risk for grand jury contempt, according to people briefed on the matter. He pushed back when Trump’s lawyers sent him a letter with instructions that he cite executive or attorney-client privileges to the grand jury.
Other former Trump aides have expressed similar frustration at the vagueness of the Trump privilege claim, people briefed on the matter tell CNN.
CNN’s Jeremy Herb and Andrew Millman contributed to this report.