The privilege litigation, which has not been previously reported and is under seal, marks a turning point in Trump’s post-presidency legal woes.
How the fight is resolved could determine whether prosecutors can break down the firewall Trump has tried to keep around his conversations in the West Wing and with lawyers he spoke to as he tried to overturn the 2020 election and worked to help him retain the presidency.
That dispute came to light as former Trump White House counsel and lawyer Eric Hersman received a grand jury subpoena seeking testimony, the people briefed said.
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 matters about which they declined to answer questions because of the 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 privileges and right to confidentiality about his dealings. Herschmann’s grand jury testimony was postponed.
It is still unknown whether prosecutors want to use the information in possible cases against Trump or others.
Trump’s lawyers expected the Justice Department to eventually seek a judge’s order to compel additional White House witnesses to testify, CNN previously reported.
The Justice Department did not respond to a request for comment.
Fight playing under the seal
Under grand jury confidentiality rules, the litigation is sealed, with no public documents showing the state of play.
The Justice Department has been engaged in a legal challenge to that effect for months, CNN previously reported.
In addition to Cipollone and Philbin, former vice president aides Greg Jacob and Marc Short appeared before a grand jury in DC court and declined to answer some questions because of Trump’s claims of executive privilege, CNN previously reported.
On Thursday afternoon, Evan Corcoran, Tim Parlatore and John Rowley, who are working together representing Trump in the January 6 investigation, were escorted out of court by a bailiff.
Parlatore told reporters he was there “representing a client” but would not elaborate. The other lawyers declined to comment.
Trump’s legal team’s push to assert the privilege broadly 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 court date he was irritated by what he saw as vague guidance from Trump lawyers not to share information, people briefed on the matter said.
Hersman pushed Trump’s lawyers to provide him with more detailed instructions on what matters to claim the privilege, according to emails reviewed by CNN and first reported by The New York Times.
“A letter of direction 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,” Hersman wrote. He then raised concerns that the Justice Department was seeking to compel his testimony if he refused to testify to certain questions.
Herschmann previously testified to a House committee about what he saw at the White House around January 6.
The outspoken attorney expressed concerns that the Trump team’s approach potentially put him at risk for grand jury contempt, according to people briefed on the matter. He pushed back 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 briefed on the matter tell CNN.
Claims of attorney-client privilege can be waived for a variety of reasons, including disclosure of any information outside the attorney-client pipeline and if the communication relates to potential wrongdoing. In the Jan. 6 situation, a federal judge in California has already found that email exchanges to and from John Eastman, Trump’s campaign lawyer, would not be covered by that confidentiality, providing the records to House investigators and allowing the Department Justice to have access to these and other similar exchanges. Executive privilege is a tougher pursuit for researchers, though not impossible to overcome. The Justice Department obtained access to Nixon’s Watergate tapes for a federal grand jury in the 1970s because of a Supreme Court ruling that the criminal investigation needed the materials. But the courts haven’t figured out exactly where to draw the lines in that investigation, or about a former president who can try to keep secret advice given to him while in charge of the country. The dispute is separate from the privileged protections Trump has sought to assert in the separate investigation into his handling of federal records and national security information after his presidency. That investigation prompted the FBI to seize classified documents from Trump’s Mar-a-Lago resort, and a judge acting as a special master is now working with more than 10,000 unclassified records to determine whether Trump can withhold them from investigators .
CNN’s Jeremy Herb and Andrew Millman contributed to this report.