The court battle over privilege, which has not previously been reported and is under seal, is a turning point in Trump’s post-presidency legal woes.
How the battle 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 lawyers he spoke with as he tried to overturn the 2020 election and they worked to help him to hold on to 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 topics they would decline to answer question of, because of Trump’s privilege claim.
Herschmann himself is not in court and is fighting the subpoena. Instead, Trump’s lawyers are asking a judge to recognize the former president’s privilege claim and the right to confidentiality about his dealings. Herschmann’s testimony has been postponed.
It remains to be seen whether prosecutors want to use the information for possible cases against Trump or others.
Trump’s lawyers have expected the Justice Department to eventually ask a judge to compel additional testimony from White House witnesses, CNN previously reported.
The Justice Department did not respond to a request for comment.
Giant that plays under seal
Under grand jury secrecy rules, the legal dispute is under seal, with no public documents showing the status.
The Justice Department has been facing 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 appeared before the grand jury at the DC courthouse and declined to answer some questions due to Trump’s claim of executive privilege, CNN previously reported.
On Thursday afternoon, Evan Corcoran, Tim Parlatore and John Rowley, who are working together to represent Trump in the Jan. 6 investigation, left the courthouse accompanied by a paralegal.
Parlatore told reporters he was there “representing a client” but would not provide further details. The other lawyers declined to comment.
Trump’s legal team’s push to broadly assert privilege has been the subject of disagreements 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 before his plea deal, he was irritated by what he saw as vague guidance from Trump lawyers not to share information, people familiar with the matter said.
“A letter directive from President Trump without a court order would not be sufficient. I do not understand your statement that the Chief Justice will decide the issue,” Herschmann wrote. He then raised concerns that the DOJ is seeking to compel his testimony if he refused to testify on certain issues.
Herschmann previously testified to the House Committee about what he saw in the White House around January 6.
The outspoken lawyer expressed concern that the Trump team’s approach potentially put him at risk of grand jury contempt, according to people familiar with the matter. He recused himself when Trump’s lawyers sent him a letter instructing him to cite executive or attorney-client privilege to the grand jury.
Other former Trump aides have expressed similar frustration over the vagueness of the Trump privilege claim, people familiar with the matter told CNN.
CNN’s Jeremy Herb and Andrew Millman contributed to this report.