Exclusive: Trump’s secret battle in court to stop the grand jury from getting information from those around him

The high-stakes legal dispute — which included the appearance of three lawyers representing Trump at the federal courthouse in Washington, D.C. on Thursday afternoon — is the most aggressive step the former president has taken to enforce the privileges of the Executive and Client Lawyer in order to prevent certain witnesses from sharing information about the events of the criminal investigation surrounding January 6, 2021.

The court battle over privilege, which has not previously been reported and is under seal, is a watershed in Trump’s legal troubles after the presidency.

How the fight is resolved could determine whether prosecutors can knock down the firewall Trump has tried to keep around his conversations in the West Wing and with the lawyers he spoke to as he sought to quash the charges. 2020 elections and they worked to help him retain the presidency. .

That dispute came to light when former Trump White House adviser and attorney Eric Herschmann received a grand jury subpoena seeking testimony, those briefed said.

Other former senior Trump White House officials, including former White House attorney Pat Cipollone and his deputy Patrick Philbin, have appeared before the grand jury in recent weeks, after negotiating specific topics on which they would decline. to answer questions, due to Trump’s claims of privilege.

Herschmann himself is not in court to fight the subpoena. Instead, Trump’s lawyers are asking a judge to recognize the former president’s claims of privilege and the right to confidentiality of his dealings. Herschmann’s grand jury testimony has been postponed.

It remains unclear whether prosecutors want to use the information for possible cases against Trump or others.

Trump’s lawyers expected the Justice Department to eventually seek a judge’s order to compel additional testimony from White House witnesses, CNN previously reported.

The Justice Department did not respond to a request for comment.

Fight under seal

Under rules of grand jury secrecy, the legal dispute is under seal, with no public records to show the state of play.

The Justice Department has been preparing a legal challenge to that effect for months, CNN previously reported.

In addition to Cipollone and Philbin, former vice presidential aides Greg Jacob and Marc Short appeared before the DC courthouse grand jury and declined to answer certain questions due to Trump’s claims of executive privilege, previously reported CNN.

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On Thursday afternoon, Evan Corcoran, Tim Parlatore and John Rowley, who work together to represent Trump in the Jan. 6 investigation, walked out of the courthouse accompanied by a clerk.

Parlatore told reporters he was there “representing a client” but would not provide any further details. Other attorneys declined to comment.

Efforts by Trump’s legal team to broadly assert privilege have been the subject of disagreements among his attorneys over legal strategy, people briefed on the matter said.

Herschmann received a grand jury subpoena for testimony and documents related to January 6 weeks ago. But he was angered ahead of his court date by what he saw as vague advice from Trump’s lawyers not to share information, people briefed on the matter said.

Herschmann pushed Trump’s lawyers to provide him with more detailed instructions on what matters to assert privilege, according to emails reviewed by CNN and first reported by The New York Times.

“A directive letter from President Trump without a court order would not be sufficient. I do not understand your statement that the Chief Justice will decide the matter,” Herschmann wrote. He then raised concerns that the DOJ was seeking to compel him to testify if he refused to testify on certain issues.

Herschmann has previously testified before the House committee about what he saw at the White House around January 6.

The outspoken lawyer expressed concern that Team Trump’s approach potentially put him at risk of contempt of the grand jury, according to people briefed on the matter. He pushed back when Trump’s lawyers sent him a letter with instructions that he cite executive or client-attorney privileges to the grand jury.

Other former Trump aides expressed similar frustration with the vagueness of Trump’s claim of privilege, people briefed on the matter told CNN.

Claims of attorney-client privilege can be overcome for a number of reasons, including if information is shared outside of the attorney-client pipeline and if the communication concerns possible wrongdoing. In the January 6 situation, a federal judge in California has already found email exchanges to and from John Eastman, Trump’s election lawyer, would not be covered by this confidentiality, providing the records to House investigators and allowing the Ministry of Justice to access these and other similar exchanges.
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Executive privilege is a more difficult pursuit for investigators, but not impossible to overcome. The Justice Department gained access to Nixon’s Watergate tapes for a federal grand jury in the 1970s due to a Supreme Court ruling that the criminal investigation needed the documents. But the courts have not clarified exactly where the lines will be drawn in this investigation, or for a former president who may try to keep secret the advice he received while leading the country.
The dispute is separate from the privilege protections that Trump tried to claim in the separate investigation into the handling of federal records and national security information after his presidency. That investigation prompted the FBI to seize classified documents at Trump’s Mar-a-Lago resort, and a judge acting as special master is now working through more than 10,000 unclassified files to determine if Trump can block them. investigators.

CNN’s Jeremy Herb and Andrew Millman contributed to this report.