Lawyers for former President Donald J. Trump are engaged in a behind-the-scenes legal battle to limit the scope of a federal grand jury investigation into the role he played in trying to overturn the 2020 election, according to people familiar with the matter.
The closed-door battle, which played out in federal district court in Washington, has centered on how far Mr. Trump can go in asserting attorney-client and executive privilege as a means of preventing witnesses close to him from potentially answering prejudicial questions in their appearance before the grand jury, the people said.
The issue is important because it will determine how much evidence prosecutors can get from an inner circle of some of Mr. Trump’s most trusted former lawyers and advisers. The outcome will help shape the contours of the information the Justice Department will be able to gather as it looks into Mr Trump’s involvement in the chaotic post-election events that culminated in the attack on the Capitol on January 6, 2021.
That process continues, although the Justice Department is also pursuing a separate criminal investigation into Mr. Trump’s handling of government documents he took with him when he left office, including hundreds marked as classified.
A federal appeals court this week blocked a lower court order that had halted a key part of the document investigation. And on Friday, the Office of the Director of National Intelligence said intelligence agencies had resumed a risk assessment of the classified material seized in last month’s search of Mar-a-Lago, Mr. Trump’s residence and private club in Florida. The work involves an assessment of the potential national security risk that would result from release of the documents, the office announced.
The attorneys’ court appearances in the battle over how far Trump would be able to claim privilege in the Jan. 6 investigation, which first reported by CNN, continues under seal, as do all grand jury cases. As a general rule, matters involving federal grand juries in Washington are overseen by Chief District Judge Beryl A. Howell.
The legal battle comes as a growing number of senior officials in Mr Trump’s administration have received grand jury subpoenas as part of the Justice Department’s investigation into a wide range of efforts to overturn the election, including a scheme to create fake lists of pro-Trump voters in key swing states won by Joseph R. Biden Jr.
This month, more than 40 subpoenas were issued to a large group of former Trump aides — among them Mark Meadows, Mr. Trump’s Last Chief of Staff; Dan Scavino, his former deputy chief of staff for communications; and Stephen Miller, Mr. Trump’s chief speechwriter and senior policy adviser.
The extensive subpoenas sought information on a host of topics, including the fake election plan, attempts to paint the election as fraudulent and the inner workings of Mr. Trump’s main post-election fundraising vehicle, Save America PAC.
The recent flurry of subpoenas came just days after Pat A. Cipollone, the lead attorney for Mr. Trump’s White House and his former deputy, Patrick Philbin, testified before the grand jury. In July, two top aides to former Vice President Mike Pence — Marc Short, Mr. Pence’s former chief of staff, and Greg Jacob, his former chief lawyer – also appear before the grand jury.
While the legal wrangling before Judge Howell must be secret, three of Mr. Trump’s lawyers – M. Evan Corcoran, John Rowley and Timothy Parlatore – seen leaving the federal courthouse in Washington on Thursday. Their appearance there was related, at least in part, to discussions about whether Mr. Trump’s claims of privilege could limit the testimony of Mr. Short and Mr. Jacob, according to a person familiar with the matter.
Mr. Parlatore declined to comment. Neither Mr. Corcoran or Mr. Rowley returned messages seeking comment.
Last week, The New York Times reported that Eric Herschmann, another lawyer who had worked in Mr. Trump’s White House, spent weeks this summer trying to get specific guidance from Mr. Corcoran, Mr. Rowley and Mr. Parlatore on how to handle issues that could raise questions of privilege before he also appeared before the grand jury.
In emails reviewed by The Times, Mr. Herschmann complained that a letter from Mr. Trump ordering him to assert privilege before the grand jury — as other witnesses had — was not enough to allow him to avoid answering questions.
“I will not rely on your opinion — so privilege applies here and is being put in the middle of a privilege battle between the DOJ and President Trump,” Mr. Herschmann, a former prosecutor, wrote in one of the emails referring to Justice. Department.
Mr. Herschmann repeatedly pleaded with Mr. Corcoran and Mr. Rowley to go to court to ask for an order from a judge that “precludes me from answering questions based on privileged claims made by President Trump,” according to the emails. They ignored his request for many days before finally filing a motion under seal on Sept. 1, just hours before Mr. Herschmann was set to testify, the emails showed. Herschmann’s grand jury appearance was postponed.
Attorney-client privilege is not an ironclad protection for lawyers and can be swept aside in cases where crimes have been committed. In July, for example, a federal judge in California rejected lawyer John Eastman’s claim of attorney-client privilege after finding that Mr. Eastman and Mr. Trump had likely conspired to prevent the certification of the presidential election on January 6. Following the judge’s decision, Mr. Eastman forced to give the House Select Committee, which is investigating on January 6, a stack of his emails.
In a somewhat similar vein, Mr. Trump claimed executive privilege over a batch of his White House records that the House committee wanted to examine as part of its investigation — even though Mr. Biden, as the current president, had waived executive privilege over Documents.
In January, after lower courts weighed in, the Supreme Court effectively rejected Mr. Trump’s claims and allowed the committee to use records. But an opinion by Judge Brett M. Kavanaugh that accompanied the decision suggested that Trump should have some residual power to assert executive privilege.
“A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the claim of privilege,” Judge Kavanaugh wrote. “To conclude otherwise would remove the executive privilege of the president’s communications.”
Julian E. Barnes contributed with reporting.