“Like fatter Tony Soprano” Attending the Arraignment and “Effect[ing]” Liz Harrington’s Pregnancy

Two amusing phrases from yesterday’s news provide a wonderful opportunity to talk about how Trump will continue to manipulate his prosecution.

First, Peter Navarro continues to seek ways to stall his long-delayed trial on contempt charges, which is scheduled to start next month. In advance of his trial, Judge Amit Mehta has granted him an evidentiary hearing so Navarro can attempt to prove that the former President told him to invoke both testimonial immunity and executive privilege, as Trump did with Mark Meadows and Dan Scavino (which is almost certainly a big part of why they weren’t charged with contempt).

When granting Navarro the hearing, though, Mehta noted that Navarro has thus far not presented any evidence that Trump told him not to testify, and he’ll need to find “formal” evidence.

[T]he court does not at this time prejudge what type or manner of instruction from President Trump might suffice to constitute a “formal” assertion of privilege or immunity. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19, 2023). The court previously left that question unanswered because Defendant had not come forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s burden will include showing that the claimed instruction to invoke was a “formal” one.

Now, Navarro is attempting to delay both hearings because Liz Harrington, Trump’s spox, is due to give birth.

The first two filings in this dispute (Navarro, DOJ) included redacted bits and exhibits explaining how Trump’s spokesperson could prove that Trump invoked testimonial immunity and executive privilege, though DOJ did make clear that they believe Harrington’s testimony is inadmissible. Navarro’s response provides more detail: He wants Harrington to describe how he wrote a press statement she could release claiming Trump had invoked executive privilege (but not testimonial immunity).

Along the way, he reveals that Harrington testified to the grand jury and DOJ believes his proffer of her testimony materially conflicts with what DOJ locked her into saying.

It’s clear from the Government’s Opposition that it would prefer that Ms. Harrington not testify at the evidentiary hearing.1 Although it claims that her testimony is “generally speaking not in dispute”, it challenges its relevance of the calls she had with Dr. Navarro and the email she received from him on February 9, 2022, the day the J6 Committee served its subpoena. Opp. n.1. Standing alone, Ms. Harrington’s testimony does not prove that former President Trump instructed Dr. Navarro to assert executive privilege in response to the Committee’s subpoena. But the testimony is corroborative of other evidence – including Dr. Navarro’s anticipated testimony – that he was following President Trump’s instructions when he notified the Committee that it should negotiate the privilege issue with its holder.2

Ms. Harrington will explain that after being served with the subpoena, Dr. Navarro called her and then followed up by sending the media statement he planned to publicly issue that day. The statement explained that President Trump had asserted executive privilege and noted that the J6 Committee should negotiate any waiver of the privilege with his attorneys and him. Ms. Harrington conveyed the statement to two of President Trump’s administrative assistants and, later that day, Dr. Navarro publicly released the statement. See Defense Exhibit 7

1 In its zeal to prosecute Dr. Navarro and keep Ms. Harrington from testifying, the Government has implicitly threatened her with perjury “if she intends to testify inconsistent with her grand jury testimony” and that she “must first waive her Fifth Amendment right not to incriminate herself.” Opp. at 3. This assertion is at odds with long-standing precedent that: “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them,” United States v. Wong, 431 U.S. 174, 178 (1977), and so, “[e]ven constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements.” United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988) (citing Wong, 431 U.S. at 178). Regardless of whether Ms. Harrington could assert the Fifth Amendment to avoid what the government submits would be perjured testimony, the reality is that Mr. Harrington’s anticipated testimony is wholly consistent with her grand jury testimony – the government just failed to ask probative follow up questions of her at the time.

Then, Navarro’s lawyers — the lawyer he shares with Kash Patel and Walt Nauta, Stan Woodward, the lawyer he shares with Carlos De Oliveira, John Irving, and the lawyer he used to share with Trump himself, John Rowley — attempt to disclaim simply using Harrington’s pregnancy as an excuse for delay.

The Government alleges without any basis that Dr. Navarro’s request for continuance of the hearing is “strategic” and done for improper reasons. Opp. at 1-2. Leaving aside the personal attack on defense counsel, there is no plausible strategic reason for the request and the Government provides none – Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion. No prejudice to the Government would result from a short continuance and it would be fundamentally unfair to Dr. Navarro to deny calling Ms. Harrington as a witness on his behalf. [my emphasis]

But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

I’m sure it didn’t.

But it also appears to be the case that DOJ locked Harrington — who may be the only one in Trump’s camp that Navarro spoke to during the period when he was subpoenaed — into testimony about the substance of their communication. And now Navarro is trying to admit his own hearsay to prove that Trump, absent any written filing, told Navarro to invoke both testimonial immunity (of which there’s no known evidence) and to raise executive privilege in the same informal way he did with Steve Bannon, which did not work for Bannon at trial but which is the substance of his appeal.

Mehta has called a pre-hearing hearing late this afternoon to sort all this out.

That phrase — “Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion” would have been my favorite Trump-related phrase yesterday, if not for the description of Boris Epshteyn in this story of how he allegedly molested two women after getting drunk and belligerent at a bar in Scottsdale in 2021.

“We have a high tolerance of people like being weird, but that went above and beyond,” she said, adding that the man grabbed the women about 10 times. “I was like, stop touching my sister. Stop touching me. Stop touching my friends.”

Police asked the older sister to describe Epshteyn.

“Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

An officer asked: “Would you be willing to press charges?”

She responded: “Yes. (Expletive) that guy.”

The NYT — including Maggie Haberman — had reported directly from the arrest report in a beat sweetener burying this and even more damning criminal exposure earlier this year, but had left out the fat part.

I’m using the phrase “Like fatter Tony Soprano” as my excuse to pick up an observation that William Ockham made yesterday about DOJ’s proposed schedule for a Trump trial on the January 6 charges.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

In addition to noting that Trump’s attorneys have been aware of the course of this investigation because of repeated contacts with prosecutors going back to June 2022 — including Executive Privilege challenges to the testimony of Marc Short, Greg Jacob, Pat Cipollone, Pat Philbin, Mark Meadows, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, and Mike Pence — it also noted that “an attorney familiar with certain relevant pre-indictment information” accompanied him to his arraignment.

I agree with Ockham’s supposition that that’s a reference to Boris “like fatter Tony Soprano” Epshteyn. Boris attended the arraignment — as he has some or all of Trump’s — but was not an attorney of record.

Back in April, before Rudy or Mike Roman or Bernie Kerik did so, Boris spent two days in interviews with Jack Smith and his prosecutors in what the press got told was a “proffer.”

The interview was largely focused on the efforts by former President Donald Trump and his allies to overturn Trump’s 2020 election loss. The second day of questioning was planned in advance, the sources said.

Epshteyn did not immediately respond to a request for comment from ABC News.

Prosecutors’ questions focused around Epshteyn’s interactions with former Trump attorneys Rudy Giuliani, Kenneth Chesebro and John Eastman, in addition to Trump himself, according to sources.

If the allusion in the proposed schedule is a reference to Epshteyn’s interviews, it confirms my general suspicion that Smith is using proffers as a way to get key subjects of the investigation on the record, rather than necessarily flipping them. It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.

But because Todd Blanche is an attorney of record for both Trump and Boris, this proffer would have been an especially obvious way for Trump to obtain information about the prosecution against him. In both the January 6 case and the stolen documents one, Boris is playing both a suspected co-conspirator and advisor on how to blow up the prosecution for political gain.

And that is why, I suspect, DOJ is being so particular about whether “volunteer attorneys” might include co-conspirators who also happen to be lawyers.

Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships to create — in first instance — an omertà leading many key witnesses to give partial testimony which, as both cases, plus Navarro’s, move toward trial, will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison. This is what DOJ has spent much of the last 14 months preparing for: Trump’s attempt to move the goalposts once he discovered how much of the truth prosecutors had uncovered.

It’s not, just, that DOJ has to try the former President in at least two venues, an already unprecedented task. It’s that the entire criminal gang is gambling that if they just get beyond the election, any and all lies can be excused in a wave of pardons like Trump used to escape his Russian exposure.

Update: CNN’s Katelyn Polantz suggested that the reference to lawyer accompanying Trump may be Evan Corcoran. Corcoran was a part of all the sealed proceedings going back 9 months.

55 replies
  1. 3balls2strikes says:

    As a non-lawyer of only average intelligence- which is the reason I could never harshly judge someone else for confusing ‘effect’ and ‘affect’- this stuff would be even more confusing to me without the commentary emptywheel provides (Lawrence O’Donnell and his guests help, too).

  2. scroogemcduck says:

    So Navarro’s only evidence is Trump’s campaign spokesperson (maybe) being willing to offer testimony which conflicts with her earlier sworn testimony?

    I hope Mehta puts an end to this delaying BS.

  3. vinniegambone says:

    Sorry, but this joke is too close not to share.

    A judge decided a jury was going to have to be sequestered. Asking if any jurors had reason they could not be sequestered one spoke up falteringly,

    Um, um , your honor, my wife is about to get pregnant. One of the lawyers said, your honor, what i think he means is his wife is about to give birth.
    To which the judge said,
    Well in either case i think you ought to be there.
    You are dismissed. .

  4. Knowatall says:

    It’s not RICO(!), but it really is a deeply woven conspiracy. As a nation, we have a problem confusing coincidence with causality, and vice-versa. I think that’s why the trials will be so difficult and the verdicts so problematic. Listening to Washington Journal (daily) provides sufficient warning as to how the MAGA contingent will react to guilty verdicts.

    • Spencer Dawkins says:

      I’ve now read so many comments about how federal RICO laws don’t cover enough and Georgia RICO laws cover too much, that i feel like Goldilocks in a house of bears …

      Where is RICO just right?

  5. Yogarhythms says:

    Folsom Prison Blues by Johnny Cash, followed by “she don’t lie” chorus of Cocaine by Eric Clapton my ear worm reading this early Friday morning.

      • vigetnovus says:

        I find your digital affect to be strangely flat; if you’re trying to effect humor among the masses, it doesn’t quite hit the mark.

        For the other less common uses of affect vs. effect (affect as a noun and effect as a verb).

        • theartistvvv says:

          In the music world, effects are used to affect the sound.

          Those uninterested with have, and those faking disinterest will effect, a flat affect.

    • JAFO_NAL says:

      “Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.”
      Lovely. Thanks for this source.

    • Spencer Dawkins says:

      I’m not remotely qualified to read a 126-page academic journal paper on constitutional law, but the Abstract alone does not seem encouraging for Trump and his Not Yet Indicted Coconspirators. Thanks for a link I would never have seen otherwise.

      And re: off-topic – when we’re reading about a syndicate that throws out a blizzard of legal misstatements like squids spurt out ink to cover their allegedly criminal tracks, is any commentary about some part of their defense ever really off topic?

      • Konny_2022 says:

        Adam Liptak had a report on this, including quotes from the scholarly article’s autors, in the NYT: “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6” (http s:// www. nytimes.com/2023/08/10/us/ trump-jan-6-insurrection-conservatives .html — blanks interspersed). That’s a much easier (and shorter) read than 126 journal pages.

      • Critter7 says:

        In the article itself, there is a short section (IV.C.2.b Section Three Disqualifies Donald Trump from Future Office, starts on p. 117) that gets to the heart of it, as it concerns TFG Mr. Trump.

    • Scott_in_MI says:

      I can’t help but wonder if this is the beginning of an effort to provide cover for a change to the GOP nominating rules to block Trump.

        • Scott_in_MI says:

          I’d say it was pretty apparent a year ago that Trump was going to run again in 2024. In any event, we’ll see where this goes.

        • earlofhuntingdon says:

          It was apparent on January 21, 2021. Being president is his only get out of jail free card, and he needs to exact revenge.

    • Oldcoachjm says:

      Interesting paper, we’ll thought out. Unfortunately, as we have learned many times over, the meaning of a constitutional text is whatever 5 Supreme Court justices decide it is at a given moment. That meaning holds until another group of five justices decide on a different meaning. Some, but not all, of these justices may be persuaded by a careful legal argument….maybe, once in a while.

      • Scott_in_MI says:

        It depends on who you think is the audience for this argument. As private organizations, the political parties are free to adopt restrictions on their nominating process that exceed Constitutional requirements for the office – there’s no constitutional right to run for president as a particular party’s nominee, after all.

    • SteveBev says:

      It is an extremely interesting read.

      Amongst other things this proposition tickled my interest :

      ‘Finally we would believe it would be wrong for courts to refuse to decide cases, otherwise lawfully in their jurisdiction, concerning Section Three on the pretense that such matters are “political questions”. Outside such exercises of power to exclude, to expel, or impeach and try, committed to each House’s judgment, Section Three is enforceable by the judiciary •as well as• other officers n454 . Section Three’s terms embody rules and standards enforceable as any other constitutional provision is enforceable. There is no freestanding judicial power from abstaining from enforcing the Constitution whenever doing so might be difficult or controversial.’

      This suggests to me that the authors are suggesting that a Judge in a court proceeding lawfully seized of a matter in which the conditions precedent for the enforcement of Section Three fall to be determined, and are determined, has the power and the duty to declare the provisions satisfied.

      That would seems bold.

  6. Peterr says:

    But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

    I’m sure it didn’t.

    See, you probably had a well-rounded sex education class when you were in middle school. Obviously, Navarro’s lawyer probably had one of those rightwing abstinence-only “Just say no!” sex education classes, that didn’t get into the details of how these things work.

    Either that, or the lawyer has a *very* unusual manner of filing motions.

  7. klynn says:

    I come here for the facts, the weeds, the close reads of documents that result in amazing journalistic discoveries. I stay here for the best headlines EVER!

    Just when I think it cannot get more absurd, I’m shown otherwise through EW and team!

    ROTFL! Thank you for finding the comedy of errors in these crazy times!

    • NerdyCanuck says:

      “the facts, the weeds, and the close reads” is a great and snappy promo line for the blog as a whole! touché!

  8. ApacheTrout says:

    In a pregnancy tinged post, this jumped out at me:

    “Corcoran was a part of all the sealed proceedings going back 9 months.”

  9. Nessnessess says:

    This 8/10/23 article at Mediaite has the bodycam video of the Epshteyn.

    https ://www.mediaite.com/ news/ trump-adviser-boris-epshteyn-accused-of-groping-women-at-club-in-shocking-arrest-bodycam-footage/

  10. bloopie2 says:

    “The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships … which … will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison… . Trump’s attempt to move the goalposts … .”

    Query: Who, in the Trump camp, is the mastermind pulling the strings of this multi-headed monster? Is it a group effort? Or is Trump, with his decades of experience at such matters, fully capable of orchestrating it on his own?

    • Wirenaut says:

      >> Query: Who, in the Trump camp, is the mastermind … ?

      This is the power of “flood the zone with shit” as a strategy. No mastermind is necessary, only a thematic figurehead. Freelancing is additive, even if it fails (e.g., Powell.) It’s operators trying to out-clever each other all the way down.

    • 2Cats2Furious says:

      Based on the statements of one former attorney who resigned before any DOJ charges were filed, Boris Epshteyn was the one who was responsible for selecting Trump’s various defense attorneys, and acting as the “gatekeeper” to Trump. He also accused Epshteyn of giving Trump terrible advice and hindering the other attorneys’ efforts to provide competent (?) legal advice.

      Might be sour grapes, but 2 other attorneys also resigned immediately after the DOJ filed charges in Florida, so I suspect there is a ring of truth. Especially since Trump hears what he wants to hear, and disregards the rest.

  11. Rapier says:

    “But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

    I’m sure it didn’t.”

    I wouldn’t be so sure. This is Navarro we are talking about. A real standout in the Flat Earth Society/World Weekly News wing of the party. Spacetime has little meaning in their rarified world, and suppose they are right?

  12. greengiant says:

    This is why I pay emptywheel good money.
    I drove right by that NYTimes Epshteyn article byline of Haberman the other day.
    It’s like screaming sirens and flashing lights of get ready for whatever it is the source whisperers are front running, down playing and distracting from.

  13. Tech Support says:

    “It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.”

    Could this approach be construed as a way to prevent or counter the kinds of shenanigans that Paul Manafort exploited with his proffer?

  14. timbozone says:

    I hope that these “proffers” are prosecutor led demonstrations of how a conspirator’s house of cards may burn. Ah, to be a fly on the wall…

  15. Savage Librarian says:

    OT, but indirectly related to Liz Harrington, a person recently assigned to a position of influence in the Trump campaign:

    “Donald Trump’s presidential campaign is bringing on Brian Hughes, a longtime Florida political operative who recently worked for Jacksonville’s Republican mayor, to lead its campaign operation in the Sunshine State.”


    I wonder if Hughes will work along side of Susie Wiles. And does this mean Hughes might become leader of the PAC?

    Speaking of Susie, I want to clarify that I have always had (and continue to have) questions about whether she was in the room with Trump at Bedminster when he waved around documents. I think it has been confirmed that Liz Harrington was one of the dominant voices heard on the tape. We know that Margo Martin was in the room as well. I would not be surprised at all if Susie was there, too. But I don’t believe that has been officially confirmed.

    After her national exposure, though, I now wonder if the Trump campaign is bringing Brian Hughes in to help make Susie less visible.

    • Ginevra diBenci says:

      SL, I thought it was at least semi-officially confirmed that Susie Wiles was among those present for the war plans display. But I may be transporting her from the other (classified map) incident.

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