Several of the ex-president’s lawyers are under scrutiny by federal investigators amid disputes over competence.
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To understand the pressures, feuds and questions about competence within former President Donald J. Trump’s legal team as it faces potential prosecution on multiple fronts, consider the experience of Eric Herschmann, former a Trump White House lawyer who has been called to testify in federal court. grand jury.
For weeks this summer, Mr. Herschmann tried to get specific guidance from Mr. Trump’s current lawyers on how to handle questions from prosecutors that raise issues of executive privilege or attorney-client privilege.
After ignoring Mr. Herschmann or giving what appeared to be confused responses to requests for weeks, two of the former president’s lawyers, M. Evan Corcoran and John Rowley, offered him only broad instructions in late August . They assert sweeping claims of executive privilege, they warned, after Mr. Corcoran had suggested that an unspecified “chief justice” would ultimately validate their belief that a president’s powers extend far beyond the their time in office.
Mr. Herschmann, who served on Mr. Trump’s first impeachment defense team but later opposed efforts to overturn the results of the 2020 election, was uneasy and appeared confused. with the reference to a chief judge.
“I’m not going to take your word-for privileges to apply here and be put in the middle of a privilege fight between D.O.J. and President Trump,” replied Mr. Herschmann, a former prosecutor, in an email, referring to the Department of Justice. The exchange was part of a series of correspondence in which, after his questions were ignored or lawyers tried to speak directly to him on the phone instead, Mr. Herschmann questioned the expertise of the lawyers involved.
The emails were obtained by The New York Times from a person who was not on the correspondence line. Mr. Herschmann declined to comment.
Mr. Herschmann’s opinion was hardly the only expression of skepticism from current and former allies of Mr. Trump who are now concerned about a turnstile roster of lawyers representing a client who often defy advice and throw tantrums. politicians in legal files.
Mr Trump’s legal team has just won round one in its battle with the Justice Department over the seizure of documents from his Florida residence and private club, Mar-a-Lago, and not unclear whether he will face prosecution by the federal multiples. and state investigations swirl around him even as he weighs another run for the presidency.
Mr. Trump also just brought in a well-regarded lawyer, Christopher M. Kise, the former Florida attorney general, to help lead his legal team, after being rejected by a handful of others he had sought. , including former US attorneys. with experience in the jurisdictions where the investigations are being carried out.
Mr. Kise agreed to work for the former president for a fee of $3 million, an unusually high retainer for Mr. Trump to agree to, according to two people familiar with the figure. Mr. Kise did not respond to an email seeking comment.
But Mr. Trump’s legal team has been distinguished in recent months mostly by the infighting and legal problems that some of its members seem to have gotten into while defending him.
In a statement, a spokesman for Mr. Trump, Taylor Budowich, said that “the unprecedented and unnecessary arsenal of law enforcement against the most powerful political opponent of the Democrats is a truth that cannot be covered up and will it continues to be emphasized by the vital work. is being done right now by President Trump and his legal team.”
Two members of Trump’s legal team working on the documents case, Mr. Corcoran and Christina Bobb, have subjected themselves to scrutiny by federal law enforcement officials about assurances they provided to prosecutors and to federal agents in June that the former president had returned all sensitive government. documents held at his residence and announced by a grand jury, according to people familiar with the situation.
This assertion was proven untrue after the search at Mar-a-Lago in August turned up more than 100 additional classified documents.
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Investigators are seeking information from Ms. Bobb about why she signed a statement attesting to full compliance with the subpoena, and indicated that they have not ruled out pursuing a criminal inquiry into the actions of either Ms. Bobb or Mr. Corcoran, according to two people informed about the matter.
The affidavit was drafted by Mr. Corcoran, but Ms. Bobb added language to it to make it a less ironclad statement before he signed it, according to the people. She retained longtime criminal defense attorney John Lauro, who declined to comment on the investigation.
It is not clear whether the authorities have yet questioned Ms. Bobb or whether she has had discussions with Mr. Trump’s other lawyers about the degree to which she will remain bound by the attorney-client privilege.
Mr. Corcoran and Mr. Rowley did not respond to emails seeking comment.
Mr. Corcoran, a former federal prosecutor and insurance lawyer, represented former Trump aide Stephen K. Bannon in his recent trial for refusing to comply with a subpoena issued by the House committee investigating the attack of January 6 on the Capitol. In that case, Mr. Bannon claimed that he believed he had immunity from testimony because of executive privilege; Mr Trump later said he would not seek to invoke executive privilege for Mr Bannon.
Mr. Corcoran, the son of a former Republican congressman from Illinois, told associates that he is the former president’s “principal” lawyer and stressed to colleagues that he does not need to retain his own lawyer, as did – Mrs. Bobb.
But several Trump associates have said privately that they believe Mr. Corcoran cannot continue in his role in the documents investigation. That view is shared by some of Mr. Trump’s advisers, who have suggested that Mr. Corcoran needs to step aside, in part because of his own potential legal exposure and in part because he had little experience in defense work. criminal beyond his instinct as a person. federal prosecutor for the United States attorney in Washington more than twenty years ago.
Mr. Trump has at least 10 lawyers working on the major investigations he faces. Mr. Corcoran, Ms. Bobb and Mr. Kise are focused on the case of the documents, along with James M. Trusty, a former senior official of the Department of Justice. Three lawyers on the team — Mr. Corcoran, Mr. Rowley and Timothy Parlatore — represent other clients who are witnesses in cases related to Mr. Trump’s efforts to stay in power.
To the extent that someone is considered a quarterback of the documents and legal teams related to January 6, it is Boris Epshteyn, former campaign consultant and graduate of the Georgetown University law school. Some aides tried to block his calls to Mr. Trump in 2020, according to former White House officials, but Mr. Epshteyn now works as Mr. Trump’s in-house counsel and speaks to him several times a day.
Mr. Epshteyn played a key role in coordinating efforts by a group of Mr. Trump’s lawyers and political allies immediately after the 2020 election to prevent Joseph R. Biden Jr. from becoming president. Because of that role, he has been asked to testify in the state’s investigation in Georgia into efforts to reverse Mr. Biden’s victory there.
Mr. Epshteyn’s phone was intercepted by the F.B.I. last week as part of the broad federal criminal inquiry into the attempts to overturn the election results and the January 6 attack on the Capitol. That sparked alarm among some of Mr. Trump’s allies and advisers about him remaining in a position of authority in the legal team.
It is not clear how much strategic direction and leadership Mr. Kise can provide. But he is joining a team defined by battlegrounds and disputes over legal issues.
In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness to the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of the Mr. Bannon clearly argued that case law on executive privilege did not reflect what Mr. Corcoran believes he did.
Mr. Herschmann made it clear in the emails that in the absence of a court order preventing a witness from answering questions on the basis of executive privilege, which he had repeatedly asked them to seek, he would be forced to testify.
“I am certainly not relying on any legal analysis from you or Boris who – to be clear – I think is an idiot,” Mr Herschmann wrote in a different email. “When I asked about Boris’s legal experience working to challenge a presidential election as he appeared to have none — challenges resulting in several court failures — he boasted that he was ‘just having fun’, while who also took selfies and posted pictures of himself online. escapades.”
Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead simply sending the directions in writing, which alarmed Mr. Herschmann, since Mr. Herschmann was a witness. , show the emails.
In language that reflected the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, who is himself under subpoena in Georgia, “should in no way is involved in trying to influence, delay or prevent my testimony.”
“He is not in a position or qualified to give an opinion on any of these matters,” Mr. Herschmann said.
Mr. Epshteyn declined to respond to a request for comment.
Nearly four weeks after Mr. Herschmann first asked for a letter of instruction and for Mr. Trump’s lawyers to seek a court order invoking a privilege claim, the emails show he received notification from the lawyers — in the early hours of the morning of the day he was sitting. scheduled to testify – which they finally did as he asked.
Michael S. Schmidt contributed reporting.
Kitty Bennett contributed research.