Justice Department subpoenas Trump White House lawyer Eric Herschmann

A federal grand jury investigating the Jan. 6 attack has subpoenaed Trump White House lawyer Eric Herschmann for documents and testimony, according to a person familiar with the matter.

Herschmann represented Donald Trump in the former president’s first impeachment trial and later joined the White House as a senior adviser. He did not work in the White House counsel’s office, but did provide Trump with legal advice. Because of that responsibility, there will likely be litigation over the scope of the subpoena and over how executive and attorney-client privileges may limit Herschmann’s ability to comply.

Herschmann is not the first former Trump White House lawyer to receive a DOJ subpoena. Pat Cipollone, who served as White House counsel, and Patrick Philbin, who served as deputy counsel, have also been subpoenaed.

During the tumultuous final weeks of Trump’s term, Herschmann clashed with other aides and advisers who pushed the defeated president to fight the election results. He was also present for many of the most consequential meetings in that period of time. Among them was a high-stakes meeting where most of the Trump Justice Department’s top brass threatened to resign rather than work under a colleague who wanted to advance spurious claims of widespread voter fraud.

Herschmann also sparred with Sidney Powell and Michael Flynn when they urged Trump to have the military seize voting machines. The Jan. 6 select committee has aired numerous portions of his testimony to their panel, which is blunt and sometimes darkly amusing.

A spokesperson for Herschmann declined to comment. The Justice Department declined to comment.

In his testimony to the select committee, Herschmann described lambasting Jeffrey Clark, then a top Justice Department lawyer, during a White House meeting on Jan. 3, 2021. At that time, Clark was urging Trump to remove then-Acting Attorney General Jeff Rosen and give him the job.

Clark had encouraged his DOJ colleagues to send letters to state legislators saying the department had found concerning evidence of voter fraud in the 2020 election. Former Attorney General Bill Barr, however, had said the department found no evidence of fraud that could have swung the election. Under those circumstances, Clark’s plans so concerned his colleagues that many of them warned Trump in that Jan. 3 meeting that they would quit if he gave Clark the top job.

Herschmann later recalled to the select panel that he found Clark’s idea to be “asinine” and dryly brought up Clark’s past as an environmental lawyer.

“I thought Jeff’s proposal — Clark’s proposal was nuts,” Herschmann told the committee. “I mean this guy, at a certain point, ‘Listen, the best I can tell is the only thing you know about environmental and elections challenges is they both start with E. And based on your answers tonight, I’m not even certain you know that.’”

Herschmann also told the select panel about a contentious phone call he had on Jan. 7, 2021, with Trump-allied lawyer John Eastman. In the call, Eastman discussed plans to keep pursuing Trump’s efforts to reverse the election — despite the violence of the previous day’s Capitol riot.

“And I said to him, ‘Are you out of your F-ing mind?’” Herschmann told the panel. “I said, ‘I only want to hear two words coming out of your mouth from now on: orderly transition.’”

Eastman finally said those words, according to Herschmann.

“I said, ‘Good, John. Now I’m going to give you the best free legal advice you’re ever getting in your life: Get a great F-ing criminal defense lawyer. You’re going to need it,’” Herschmann added. “And then I hung up on him.”