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

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)

31 replies
  1. Leu2500 says:

    Ivanka has shown a similar lack of recall in her depositions in other lawsuits. Seems she’s had a lot of practice at the strategy Passitono (sic) gave Hutchinson b4 she fired him.

  2. Amicus says:

    Thank you for this. Nixon chose to resign because his oval office tapes established beyond any doubt that he obstructed and conspired to obstruct justice. The publicly available information paints almost as irrefutable a case that Trump conspired to obstruct the electoral vote certification. The entire world (including Trump) saw the violence transpire and the entire world knows that for several hours Trump did nothing. Indeed, he poured gasoline on the fire with the tweet you quote. And we have Hutchinson’s testimony about Meadow’s statement that Trump wanted nothing done to stop the violence and occupation of the Capitol. As you point out, we don’t know what other eye witnesses have testified about all of this.

    And we now know that all of this fit with his legalistic – not legal – efforts to remain in power by stopping the electoral vote certification and winning the Presidency by Pence’s actions, or a vote in the House.

    There are no end of possible charges in connection with January 6 and otherwise. But what you have laid out has always seemed to me to be the simplest and strongest of all the January 6 related charges. The President is charged with taking care that the laws be executed. He deliberately failed to do so to try and achieve his own illegitimate personal gain at the expense of democracy, the Constitution and the lives and well-being of others. It’s scandalous. And to this day, much of the media and power centers of society choose to normalize it.

    • earlofhuntingdon says:

      Nixon resigned because Republicans and Democrats both refused to keep a probable criminal in the Oval Office. Today’s Republicans would not have lifted a finger to remove Nixon; they would have worked hard to keep him there.

        • Amicus says:

          Both statements are true. Nixon was told he had very few votes to acquit and the driving force was the recordings. Garrett Graff has a good new single volume history. There are still many core mysteries surrounding Watergate, but it’s the tapes that did Nixon in – even his erstwhile supporters were unwilling to try and explain them away.

        • Rayne says:

          And in turn the GOP caucus’s thread to Nixon there were votes to impeach, convict, and remove him. Nixon had to be threatened, he didn’t just up and leave because he was a good, ethical Quaker.

        • earlofhuntingdon says:

          The ironies run deep. The GOP recently ran a concerted campaign to eject Liz Cheney from the party and her congressional seat for being willing to challenge Donald Trump’s conduct while (not “as”) president. Yet, her father helped lead the party’s descent into anarchic authoritarianism, nearly a decade before Newt Gingrich turbocharged it.

          As Donald Rumsfeld’s top aide, he became Gerald Ford’s chief of staff when Rumsfeld left that job to become SecDef. A decade later, he was the ranking member on the Iran-Contra Committee. He wrote its minority report in support of the Reagan-Bush team’s voluminous illegalities and against the authority of Congress to investigate and punish them.

          As a reference point, he castigated Nixon for having resigned. In his distorted view, Nixon “gave up” too much power to Congress. In reality, Nixon acknowledged political reality and Congress’s explicit constitutional authority to oversee executive branch excesses through the impeachment process.

      • jecojeco says:

        The GOP has taken co-ownership of trump’s failed coup attempt, they saw the error they made with Nixon by putting country ahead of party and decided not to repeat their “mistake”. It seems GOP prezes go rogue and illegal every half century. Although Reagan got a free get out of jail card when he clandestinely negotiated with Iran regime while he was a private citizen and undermined the only US president at the time, which was at least espionage, if not treason.

  3. Rugger_9 says:

    Well, it certainly would improve Ivanka’s (and Jared’s) chances to be summoned by SC Smith as noted in the post to create the accurate timeline. I also wonder whether NSA and FBI has SIGINT not yet shared publicly. Once McCarthy released his tapes to Tucker Carlson, can we be sure that there are valid copies not ‘edited for clarity’ by Carlson? There might be some stray communications in there as well, and McCarthy is not bright enough to look for them before releasing them to Carlson plus the media outlets currently demanding them.

    Recall this insurrection was billed as a defense against ANTIFA / BLM riff-raff from stealing the election. Since the agencies were still under Individual-1’s commissars they would be monitoring for signals to justify launching the cops (like PDX) but as we know there were no ANTIFA to crush. So, I think there were signals to look through, but we also don’t know if they were scrubbed or archived. Given who was in charge, we can’t be sure but let’s hope SC Smith has them.

    Those signals would be compared to the timeline proffered by the witnesses. Whether said witnesses would then be hauled up on charges depends upon what is found on whom.

    • emptywheel says:

      They are not going to use SIGINT that was not obtained with a warrant targeting the people involved. Mueller didn’t either.

      Had he used the FISA intercept of Sergei Kislyak they might have gone further in the Report.

  4. harpie says:

    Somehow, I missed that about the 10:50 PM TRUMP/HERSCHMANN call. That reminded me, and I’ll add it [***] about HERSCHMANN’s calls that day with ROSEN and DONOGHUE:

    10:46 AM ROSEN calls HERSCHMANN [2m]
    3:57 PM DONOGHUE calls HERSCHMANN [1m]
    5:38 PM DONOGHUE call from HERSCHMANN [1m]
    7:56 PM DONOGHUE call from HERSCHMANN [2m]
    10:50 PM HERSCHMANN call with TRUMP [5m] [***]
    11:11 PM DONOGHUE call from HERSCHMANN [6m]

      • harpie says:

        hmmm… that’s true! I don’t know who HERSCHMANN might have spoken to during that time, but there is this in the TL:

        11:08 PM HANNITY call with TRUMP [8m]

        Also, these two items:

        [bet] 5:00 PM and 6:00 PM DOBBS call with TRUMP [unkown duration]
        5:29 PM DOBBS relays TRUMP’s message to his audience

    • Ginevra diBenci says:

      Thank you, harpie. You corrected my misreading of EW’s post; my brain insisted on the Trump/Herschmann call occurring in the morning (10:50 a.m.). A call twelve hours makes much less sense to me.

      I’m assuming that Trump placed the call, which you list as “with” Herschmann. I find it hard to imagine any reason he would want to talk to an anti-insurrectionist lawyer (if that’s what he was) except to assess/forestall personal liability. I would almost sell my soul to hear a recording of that call.

  5. PieIsDamnGood says:

    The “stay peaceful” portion of the statement reads very similarly to rhetoric of extremely online right wingers. It was common to see statements like “We need to destroy the democrats (peacefully)” on sites like The Donald. Saying “stay peaceful” after violence has occurred spoke directly to the insurrectionists in a language they were sure to understand.

    Also noticed a typo – “Before Hutchinson have her later testimony”

  6. iamevets says:

    I understand the frustration with how long it takes to get the evidence in order to criminally charge trump. I also understand, and thank you all here for educating me, how it is a step by step process that can’t be rushed. Outside of the anxiety of a lone wolf trump juror ignoring all the likely and overwhelming evidence of his guilt, what is the risk that this case would come before McFarland (or some other biased judge) and make a conviction that much harder? (much less what someone like McFarland would ultimately sentence him to assuming a conviction). I’m assuming you can’t just pick a judge like kacsmaryk in texas like republicans do for this but how does the process work?

  7. hollywood says:

    Yes, will the case be assigned off the wheel? Or will it go to one of the judges presiding over a grand jury currently?

    • emptywheel says:

      I suspect they will either go with Chief Judge (who will have presided over some grand jury), Howell, who has, or either Tim Kelly or Amit Mehta.

      If everyone had their choice it’d be Mehta, probably.

  8. Jenny says:

    “Don’t go out of your way to correct a false assumption if it plays to your advantage.”
    ― Ivanka Trump

  9. harpie says:

    we were talking about COVID lab-leak stories here:

    That’s closed now, but I wanted to add, via Cheryl Rofer:
    6:20 PM · Mar 3, 2023

    This by @KatzOnEarth makes a crucial point that gets glossed over in 99% of #OriginsOfCovid discourse. There’s no unitary “lab leak theory.” There’s nothing that generates testable predictions (a necessity for something to be science). [link]

    The Trump/Pompeo State Department had a whole special stovepiped team dedicated to claiming COVID was a Chinese government bioweapon released on purpose. Or maybe by accident. But probably at the World Military Games. […]

    One strike against any of those lab scenarios is that they all rely on COVID ever having been inside a lab, and there’s zero evidence for that, or indeed that there was ever a plausible precursor in any lab. ¯\_(ツ)_/¯ [THREAD]

    • harpie says:

      ROFER has an article in Scientific American and a THREAD here:
      8:08 AM · Mar 4, 2023

      […] The FBI showed how unsuited their methods were to such an investigation by botching their conclusions about the anthrax letters sent after 9/11. And they had 7 years to do that. 5/

      So take those intelligence assessments with a grain of salt. By labeling them “low confidence,” they themselves are telling you to do that. 6/6.

      Lab-Leak Intelligence Reports Aren’t Scientific Conclusions
      Intelligence reports supporting the lab-leak theory for COVID are not based in science Cheryl Rofer on March 3, 2023

      • harpie says:

        From the article:

        […] The important factor for intelligence assessments is the veracity of sources, whereas scientific conclusions depend on data and the coherence of the argument the data support. However, data from a scientist who has proved unreliable in the past will weigh less heavily in scientific conclusions, and intelligence analysts will regard fanciful stories from an otherwise reliable informant skeptically. The scientific data are available to the public, unlike the reporting that underlies the intelligence assessments.

        Scientists share information widely, but intelligence professionals prefer to keep theirs to themselves. […]

        • harpie says:

          Cutting-edge science is the expertise of the Department of Energy, however, which runs 17 national laboratories, several studying SARS-CoV-2 and its origins. Intelligence professionals in the national laboratories work with scientists to develop assessments. Because they are embedded in the laboratories, they can develop working relationships to explore puzzles of science and intelligence.
          “Trust me” is the inclination of the intelligence professional in arguing to the public and the basis for the lab leak origin, but a natural origin is backed by public data in scientific journals.

          If there is new information or a new reason to believe otherwise, public confidence would be best served if that information is made known.

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