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

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.


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.


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.


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?


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.

94 replies
  1. DavidO says:

    Why is Trump so reluctant to assert executive privilege? And instead try to rely on stealth executive privilege?

    Is it just the obvious, an actual assertion can be contested?

    • emptywheel says:

      Yes. Once Howell rules against this, then everyone else who invoked EP (at least EP) will also be forced to testify.

      • Njrun says:

        What happens if Howell rules against the executive privilege claims but Cippilone and others still refuse to testify about conversations or interactions with Trump and other plotters within the government? I can’t see any scenario in which most of these witnesses will implicate Trump, even under court order.

        • bmaz says:

          Yes. There is a difference between protecting the situation by demanding a court order, and then refusing to comply. If Cipollone and Philbin get a court order, hard to see them not complying.

        • joel fisher says:

          Isn’t it rather certain that the minions will appeal any adverse ruling on privilege or any other issue? Court of Appeals; Court of Appeals en banc; SCOTUS? After which they start invoking the 5th A?

        • Zachary Pruckowski says:

          It’s not clear to me that someone like Herschmann or Pat Cipollone has criminal exposure? They were the “Team Rational” guys, and while their presence maybe conveyed some legitimacy or cover, they’re not directly implicated in crimes?

          And Christina Bobb, I’m sure, has all the incentive in the world to sing in the absence of privilege issues – the whole Trump MO is to leave folks like her and Corcoran holding the bag on the coverup.

          The question would be whether Trump would try to somehow appeal.

        • emptywheel says:

          I doubt Herschmann really GAF about testifying. So he won’t appeal. And that’ll fuck Cip’s effort to appeal himself, at least for Jan 6.

        • timbo says:

          I’m not convinced that Herschmann won’t appeal. This is an odd bird of a situation and folks like Pat C and Herschmann are not going to be interested in perhaps being the one person who is telling the truth while everyone else continues to refuse to testify or invokes the 5th if compelled to testify, etc. There are also scenarios possible where either or both of them also might feel the need to invoke the 5th themselves. If they’re both clean here that would be great but…

    • viget says:

      That’s my guess, but NAL.

      The whole name of the Trump lawyer game is delay, delay, delay. Now, with their backs against the wall with Herschmann who is a competent lawyer and has his own interests to protect, they finally have no choice. The delay game is over.

      This will hopefully set DC district precedent, which will impact many other Trump investigations. Or it may only apply to J6, honestly I’m not sure.

      • Ginevra diBenci says:

        viget, you discussed the potential DC circuit precedent and its possible limitations. I am wondering if a Howell ruling against the assertion of executive privilege would impact the 11th circuit deliberations on DOJ’s stay motion, and if not whether that might trigger DOJ to get this case back where it originated in DC–and with a criminal, not civil, investigation.

    • timbo says:

      Because if this invocation is done to obstruct an investigation into an actual crime that is a serious felony…EP can’t be used to obstruct a criminal investigation when crimes have been committed. That’s why Team Twitler does not want to put such invocations in writing unless they absolutely have to.

  2. Zirc says:

    If a claim of executive privilege for Trump were upheld, wouldn’t that mean he has successfully argued that Bill Clinton, GWB, and Obama all retain some powers of the presidency as well?


  3. L. Eslinger says:

    The Supreme Court had previously concluded that executive privilege cannot be claimed just to further a “generalized interest in confidentiality,” but must relate to the executive’s involvement in matters of national interest (the latter being my unschooled interpretation). And even though the current court’s opinion was limited to the situation presented in Trump versus Thompson, there wasn’t any magical cutout that might provide coverage for “criming, politicking, and personal business.”

    If the thought train of this comment hasn’t gone off the rails then how can a claim of executive privilege, formally made or not, be used as a blanket, rather than a selective wrapper around specific actions and information, each of which must be justified to ensure that the claim of privilege is not abused?

  4. Oldguy says:

    On the question of Cipollone invoking privilege, is it clear as to whether he was referring to executive privilege rather than attorney client privilege? I realize he was White House and not personal counsel, but discussion privilege with Mr. Trump and his lawyers (and lawyers who were not his lawyers but hangers on who were pushing his theories like election denial) have been very blurry. While Cipollone has struck me as one of the less unlawful lawyers, it would not seem to me impossible that he would be purposefully ambiguous in his use of privilege in order to argue that he meant attorney client if executive is proscribed and vice versa.

    • Cheez Whiz says:

      Did you note in that exchange above how Liz Cheney asked about “the White House”, Cipollone ummed a bit about staff, then pretended that Liz asked about staff? He seems to be good at choosing words.

  5. Alexei Schacht says:

    Why do you say that this email chain is “clearly privileged”? Herschmann is a witness in this context and he is talking to lawyers but not to his lawyers. Or are you saying that Herschmann and Rowley and Corcoran are essentially co-counsel with the same client – Trump – and that they have an attorney-client duty to Trump? I don’t believe either of those scenarios are correct. I was imagining that this was leaked by a Herschmann confederate as Eric likes to make himself appear “good” in the press.

      • Former AFPD says:

        bmaz, I have to agree with you on this issue. I think I’d have to argue privilege if I thought it applied until a judge told me otherwise and ordered me to testify.

    • emptywheel says:

      It is true that DOJ treated Bannon’s lawyer’s comms with Justin Clark as unprivileged (though Bannon offered that up in an attempt to forestall indictment).

      But in this case, Herschmann was unquestionably covered by EP for some of the stuff he did at the WH. So he’s asking about his own privilege relationship with Trump.

  6. Former AFPD says:

    The DOJ has now identified some of TFG’s counsel – unnamed – as potential witnesses in the litigation. To whom does this apparently intentionally cryptic allegation refer? Thoughts? Why would any lawyer who might fall into this category remain as counsel of record in this case? Why would the government allow such attorney to continue to participate as counsel of record? Hmmm.

    • Scott Rose says:

      If Trump dictated to attorneys Corcoran and Bobb what to put in the statement falsely alleging that a diligent search had been conducted and that no further documents responsive to the subpoena remained in Trump’s possession, then it is conceivable that Corcoran and Bobb would be witnesses and/or defendants.

      • Former AFPD says:

        Scott, Yes, I have commented about the conflicts of interest several times. This is the first time the DOJ actually made a statement about potential conflicts in a pleading. Where is the motion to disqualify conflicted counsel? Why aren’t the lawyers with the potential conflicts removing themselves from the case?

        • Former AFPD says:

          How about Motion to Determine Unconflicted Counsel? I guess we are having a red pen editorial contest. Either caption would work.

        • bmaz says:

          Lol, like a lot of captions, it doesn’t matter, just what I always called it. But until they are conflicted off, an atty with a proper NOA is a counsel of record.

    • emptywheel says:

      Obviously Corcoran.

      But given that he is referred to as FPOTUS Counsel 1 in the affidavit, and Bobb is referred to as Person 2, it suggests there’s ANOTHER FPOTUS Counsel in the affidavit. The plural reference would seem to suggest Trusty, since Kise was not on the team early enough to have made himself a witness by August 5.

      • Ginevra diBenci says:

        The NYT article never says which Trump counsel signed the assertion of EP. Because Herschmann reported contact from Corcoran, I’m wondering if he was among them–further extending his potential conflicts.

        That article included a fine-print post-script saying reporting was contributed Mike Schmidt, and “research” by Kitty Bennett. Katie Benner is the Times’ DOJ reporter.

        Kitty Bennett is a longtime researcher mainly contributing to political stories. So all hands on this deck are politics people.

  7. Scott Rose says:

    Between January 6 and the stolen documents matter, Cipollone alone knows enough to get Trump sent up the river for a good long time. .

  8. clyde g says:

    I don’t know if it’s meaningful, but I was surprised that Christina Bobb’s name wasn’t on the list of “Interested Persons”.

      • clyde g says:

        The Motion for Partial Stay includes a “CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLSOURE [sic] STATEMENT“ and lists almost everyone associated with this case (e.g. – the judges, Patel!) , including Trump’s attorneys – but not Bobb and I don’t know why that should be. Does this imply something?

        • emptywheel says:

          Nevermind. It makes sense. By DOJ’s standards she’s still an uncharged witness, and so her identity is protected.

          Mark Meadows is a highly likely candidate to be Person 1, also alluded to in the affidavit (in redacted sections), but he’s not on the list either. That’s because his central involvement is still, legally at least, secret.

  9. Hoping4Better_Times says:

    IANAL. I get confused about “privilege” in general. There is attorney-client privilege which I think I understand.
    Anything that you discuss with an attorney for legal advice is protected and need not be disclosed. No need to put this policy in writing. If a crime is involved, then there is an exception and the verbal discussion can be disclosed. And if a third party is present and hears or reads about the discussion between the attorney and the client, then the A-C privilege does not hold for the third party. Are my statements about A-C privilege correct?

    Does the “executive privilege” work in the same way? Hershmann kept asking for written instructions? Cipolloni (and Philbin?) invoked executive privilege to refuse to answer specific questions from the J6 committee. Would the J6 Committee need to go to Court to compel Cipolloni to answer those questions where he invoked Executive Privilege? If I remember correctly, SCOTUS ruled that E-P is owned by the current president in the case where trump invoked E-P to block NARA from turning over records to the J6 committee. President Biden had delegated the decision to the NARA Archivist.

    • bmaz says:

      No, they are not the same. But the J6 committee is incapable of enforcing much of anything, but so is all of Congress.

    • emptywheel says:

      For true Attorney-Client privilege, you’d need a crime-fraud exception to overcome that privilege (ignoring your point about third parties, and also other cases if someone waives privilege by, say, sharing an email thread with the NYT).

      For White House Counsel, the EP question is going to be somewhat limited, bc they work for us, not Trump. Plus, it requires a more formal assertion, and item by item.

      So when I said, above, that Howell’s ruling will pertain to EP, at least, I meant that it’ll definitely apply to all Jan6 EP claims, but might affect Jan6 A-C claims.

      • Rollo T says:

        By what mechanism will the government be able to discover the crime/fraud facts given the taint team has segregated all potential A/C items from those conducting the investigation?

      • WilliamOckham says:

        That’s what I thought. And I can’t find, in an admittedly cursory internet search, any evidence that either of them claimed executive privilege at the grand jury. I suspect that the questions they were asked were carefully chosen to avoid any mention of executive privilege. That is, of course, merely speculation on my part.

    • Rugger9 says:

      As long as the question is undecided, then it functions as if EP or A-C P has been approved, and the latest bit of evidence is Cannon’s ruling. We saw this from the beginning of TFG’s administration where his minion s kept claiming EP without asserting it, in many cases to ‘preserve the ability of POTUS to invoke privilege’. It was BS then as well as now.

      What has to be done is to call the bluffs, because otherwise we have an administration being given a green light to hide all of the evidence behind ‘privilege’ walls that aren’t really valid or properly invoked.

      • obsessed says:

        So is Trump declining to invoke executive privilege because his lawyers have told him it has too high a chance of being disallowed on appeal? I was reading this Lawfare article ( on that big 8-1 SCOTUS case (with a Kavanaugh caveat). It seems to say that SCOTUS was reserving the right to bail Trump out in the future. And there was some recent commentary about Cannon trying to use Kavanaugh’s partial dissent (or whatever it was) in her current shenanigans. Do we think Trump is trying to keep his powder dry and will eventually try a full court press on EP?

        The ruling thus seems to reserve for another day the question of whether a former president can assert the privilege—and Justice Kavanaugh actually wrote a short opinion explaining why he disagrees with the D.C. Circuit on the point.

        But the justices also seized on the D.C. Circuit’s alternative basis for resolving the case—which is actually far broader than the mere proposition that a former president can’t assert the privilege in the face of the current president’s objections.

        • earlofhuntingdon says:

          Presumably, there wasn’t a majority on whether and how a former president could assert EP, where the sitting president had refused to assert it.

          To that extent, the radical right kept its powder dry. Thomas would have held that a former president had an unfettered right to assert it as to his former records. Beer Kavanaugh, ever the Susan Collins-esque worm, hemmed and hawed, but was enough in favor of that position to write a short concurrence.

          As appellate courts are wont to do, the S.Ct. avoided reaching a thorny constitutional question by finding a statutory or other reason on which to hang its decision. Here, it was because the DC Circuit had concluded that not even the sitting president could have successfully asserted EP. (Biden chose not to.) On that basis, it held that the DC Circuit’s analysis concerning a former president’s ability to assert EP was premature and non-binding.

        • timbo says:

          This brings up another question. What is the penalty if a witnesses decides to ignore Executive Privilege? It’s not a law, right? It’s just a judicial contrivance with some codes referencing it thrown in, correct?

    • emptywheel says:

      I would bet they did. Otherwise no need to make the show of negotiating in advance.

      But if Howell rules that Herschmann’s EP claims fail, then the two Pats get another date with the GJ.

  10. cbear says:

    Please forgive me if this has already been asked and answered, but who chooses the 3 judges who will hear the DOJ appeal?
    And, what is the normal timeline for a decision in a case like this–days, weeks?

      • Hika says:

        Is there a definitive way in which the required ‘randomness’ is manifested, or is it left to each bench to make their own choices about scrunched up bits of paper in hats or electronically generated pseudo-randomness?

        • bmaz says:

          In the trial court, i.e. District, it literally used to be called “the wheel”. And court clerks swore it really was random, though just by computer, not a real wheel. Judges could not cherry pick cases unless they were the Chief Judge, and that was uncommon for CJs.

          At the Circuit level, there are existing panels and cases get assigned to one of them. They are not random, but also not necessarily cherry picked. And sometimes you do not know who your panel is until their oral argument schedule is announced.

  11. Savage Librarian says:

    3 Cons & Still Counting

    Three cons and still counting,
    Each with their own nastiness,
    Their woes still are mounting,
    Each with its own ghastliness.

    Three sharks and still counting,
    Each shark grasping a wishbone,
    Their woes still are mounting,
    Each under their own millstone.

    How long ‘til the counting ends?
    How long ‘til the counting ends?

    Three cons and still counting,
    Each with their pending deadline,
    Which one will be surmounting
    with the very biggest headline?

    “Three Coins in the Fountain”

  12. WilliamOckham says:

    The most likely format for the email thread in question to be presented to the NYT is print. And it’s worth asking the question why a printed copy of that particular thread exists at all. It seems unlikely that it was printed out just to be leaked to the NYT. The story’s focus on Herschmann suggests that they got it from a Herschmann associate. Let’s assume for a minute that the NYT got it from Herschmann’s lawyer.

    Now read the penultimate paragraph in the story:

    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.

    The NYT doesn’t say they saw the instruction letter. So I read this article as Herschmann letting Trump’s lawyers know that he shared the email thread with the feds. Maybe because something in the instruction letter is not consistent with the email thread.

    And one more thing, that Trump filing invoking executive privilege over Herschmann’s testimony should be showing up on a court docket somewhere, right? Any docket watchers seen that one yet?

    • Peterr says:

      Herschmann was subpoenaed to testify before a grand jury, so wouldn’t any Trump filing invoking executive privilege be sealed?

      • WilliamOckham says:

        I don’t know. Wouldn’t it eventually have to hit a docket somewhere, even if it shows up as a sealed entry? Obviously, I’m not a lawyer…

        • emptywheel says:

          The initial challenge would be sealed (which is why you’d leak the proceedings).

          It would take some doing to get it unsealed — it might not be unsealed even if the Two Pats got another subpoena to testify. It might only get unsealed if there were a contempt filing.

        • bmaz says:

          It “ought” to be sealed, because it is properly Rule 6 information. But we now live in a time where “public interest” supersedes Rule 6 and intelligent thought. And Garland and DOJ have nobody to blame but themselves.

        • nedu says:

          If you go back from In re SEALED CASE (D.C.Cir. 2000) to the earlier phase of that litigation In re: Motions Of Dow Jones (D.C.Cir. 1998), you do find:

          The press also tells us that, at least with respect to disputes about executive privilege, there is a tradition of open proceedings. Many of the instances identified, however, arose in response to congressional inquiries, or trial subpoenas, the most famous of which is <a United States v. Nixon (1974)….

          (Citation and pincite omitted.)

          And the court there sums all that up by saying, “[T]here have been too few examples of open ancillary hearings dealing with the [executive] privilege in the grand jury context to suggest any kind of trend, let alone an ‘unbroken, uncontradicted history.'”

          In terms of merely describing what the courts do in a certain context, that’s probably sufficient. But in terms of what the people ought to both expect and legislate their courts to do, it’s merely an opening point.

        • bmaz says:

          “In terms of merely describing what the courts do in a certain context, that’s probably sufficient. But in terms of what the people ought to both expect and legislate their courts to do, it’s merely an opening point.”

          That is complete garbage. Courts do not operate by public opinion. Courts are not now, and should never be, your personal balm for perceived political ills.

        • nedu says:

          Courts ought to operate according to law. Law ought to be created by Congress. Congress ought to respond to public opinion.

          Complete garbage? Sure. that’s not how it works these days.

        • earlofhuntingdon says:

          You describe a schoolyard civics version of where law comes from and how is it works. It’s law without actors, without the time frames and lags with which they act, without humans, politics, sweat or any real mechanics.

          You have described a closet, without either Narnia or the real world outside it.

        • Rayne says:

          And yet the U.S. judiciary, specifically SCOTUS, has fallen out of favor with a majority of the public because it has fundamentally departed from what the public understands to be the laws they consented to as a democracy.

          Women are literally dying because of this departure, trans students denied their equal access to education because of this departure, teachers fired and leaving their profession because of this departure.

          Sometimes it’s that simple, and sometimes the people act on it that simply — like the state of Kansas at the polls this summer.

        • earlofhuntingdon says:

          If it were that simple, a Frank Capra film would describe reality, including the reality about how he actually made it.

          What we want and expect does not describe how we get it, or how we lost what we thought would be ours forever.

  13. Tom-1812 says:

    OT: It could just be because Halloween is approaching, but the more I see of Lauren Boebert’s in-your-face camera rants, the more she reminds me of Margaret Hamilton in “The Wizard of Oz”: “I’m gonna get you, Joe Biden, and your little dog too!”

    • Noni Mausa says:

      Except, Biden’s little dog Commander would make mincemeat out of Margaret Hamilton, and her flying monkeys, too. Mwa-hahaha!

      • Ginevra diBenci says:

        Nobody–cat, dog, lion, or person–but nobody takes down Margaret Hamilton!

        Lauren Boebert, on the other hand, just got toppled by the word “wanton.”

  14. harpie says:

    Off topic, but Re: something Marcy tweeted just now:
    8:13 AM · Sep 18, 2022

    Is it correct that just the attendees on the floor did the QAnon sign? If so, is it possible Trump is resorting to mining the QAnon community to ensure he fills rallies?
    1:21 AM · Sep 18, 2022

    Trump is a national security threat. He is radicalizing QAnon ppl further and exposing others at these rallies. He is preparing them to be his next army of thugs, ready to do his bidding when he needs them.

  15. Tom-1812 says:

    In Dr. Wheeler’s Twitter feed today, she referenced Merrick Garland’s speech at Ellis Island yesterday, in which the AG observed:

    “It was 235 years ago on this day, September 17, 1787, that 39 delegates to the Constitutional Convention representing 12 states signed their names to the Constitution of the United States.”

    The AG might also have added that it was 160 years ago on that day, September 17, 1862, that General George McLellan commanding the Army of the Potomac won enough of a victory over General Robert E. Lee and the Army of Northern Virginia at the Battle of Antietam for President Abraham Lincoln to feel confident in issuing the Emancipation Proclamation, thus transforming the Civil War from a fight to restore the Union into a moral crusade.

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