A senior White House lawyer expressed concerns to President Trump's advisers and attorneys about the president signing a sworn court statement verifying inaccurate evidence of voter fraud, according to emails from December 2020 obtained by Axios.
Why it matters: The emails shed new light on a federal judge's explosive finding Wednesday that Trump knew specific instances of voter fraud in Georgia had been debunked, but continued to tout them both in public and under oath.
- While the judge's opinion stemmed from litigation related to the House's Jan. 6 committee, the Justice Department is also conducting a criminal investigation into Trump and his allies' scheme to stop Congress from certifying Joe Biden's Electoral College victory.
- Eric Herschmann, the former White House lawyer who cautioned Trump's outside attorneys about the inaccurate allegations of voter fraud in Georgia, was subpoenaed this summer to testify in the DOJ investigation.
Background: U.S. District Court Judge David Carter is presiding over the House Jan. 6 committee's attempt to subpoena communications from conservative lawyer John Eastman, one of the architects of the scheme to overturn the election.
- After a review of hundreds of emails that Eastman claimed were privileged, Judge Carter determined some should be turned over to the Jan. 6 committee — finding they were "sufficiently related to and in furtherance of a conspiracy to defraud the United States."
- In one email cited in Judge Carter's opinion, Eastman told Trump's team that the president had been made aware that some of the allegations and evidence of voter fraud used in a Georgia election lawsuit were inaccurate.
- That suit was later moved to federal court. "For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate," Eastman wrote, according to the judge's order.
Worth noting: The lawsuit that was filed in federal court contained a footnote stating that Trump was only relying on voter data that was provided to him, and that it was subject to changes based on the outcome of government investigations.
- "But, by his attorneys' own admissions, the information provided to him was that the alleged voter fraud numbers were inaccurate," Judge Carter wrote in his opinion, accusing Trump's lawyers of seeking to "disclaim his responsibility over the misleading allegations."
Driving the news: The emails obtained by Axios — which have also come to the attention of the Jan. 6 committee and DOJ, according to a source with direct knowledge — show correspondence between Herschmann, then-White House Chief of Staff Mark Meadows, and conservative activist and outside attorney Cleta Mitchell. Trump's executive assistant Molly Michael is CC'ed.
- On Dec. 30, Mitchell emailed Meadows what she described as an "almost final version" of a lawsuit set to be filed in federal court against Georgia Gov. Brian Kemp and Georgia Secretary of State Brad Raffensperger. "Remember, we were talked into this by others," wrote Mitchell, a key player in Trump's efforts to overturn the 2020 election.
- The next day, Mitchell sent a draft of the lawsuit to Herschmann in response to apparent concerns he had raised, writing: "This is the version from John Eastman with your edits."
- Herschmann responded: "I will review now. I didn't send John edits, I explained that I was concerned about the President signing a verification about facts that may not be sustainable upon detailed scrutiny. I think that we should limit specific factual 'number' allegations to those that are necessary i.e., those allegations that demonstrate that the decision is outcome determinative."
What they're saying: A spokesman for Trump did not respond to a request for comment. But in a post on Truth Social Thursday, the former president attacked Judge Carter as a "partisan hack" who "shouldn't be making statements about me until he understands the facts, which he doesn’t!"
- Herschmann said in a statement to Axios: "I am not discussing my conversations with the president or the surrounding circumstances."
- Charles Burnham, an attorney for John Eastman, told Axios: "We have extensive privileged communications regarding Mr. Herschmann's cooperation in securing the President's signed verification. If that privilege were ever to be waived we would be pleased to discuss the contents of those communications."
- George Terwilliger, an attorney for Meadows, declined to comment. Mitchell did not respond to a request for comment.
Between the lines: One tactic used by the Trump campaign and White House lawyers — who were frequently at odds with the outside lawyers pushing the most expansive claims of election fraud — was to press the outside lawyers to show "outcome determinative" evidence of fraud.
- In this case it meant showing that they had evidence there were more fraudulent ballots than the margin of victory for Biden (which was 11,779 votes in Georgia).
- In a now infamous phone call first reported by the Washington Post, Trump asked Raffensperger on Jan. 2, 2021, "to find 11,780 votes, which is one more than we have."
Behind the scenes: With 30 minutes to midnight on New Year's Eve, 2020, Mitchell sent an email suggesting she was frustrated at Herschmann for slowing down the process and asking him to get on a call "ASAP" with other members of Trump's outside legal team.
- The relationship between Mitchell and Herschmann was already strained in the days leading up to the New Year's Eve email exchange, according to three sources familiar with the situation. It included a heated phone call between Herschmann and Mitchell, while Herschmann was sitting in the outer Oval.
- Trump's executive assistant had shown Herschmann a document that had come in from outside lawyers. It was a verification, in support of an election complaint, that the lawyers wanted Trump to sign in front of a notary. But there was no complaint attached to the verification, according to two sources with direct knowledge of the document.
- And the complaint, at that point, had not yet been finalized. The lawyers wanted to get the president's signature on the verification before the final draft was completed.
Herschmann told the outside lawyers he would not allow the president to sign a verification without sound documentation attached, and challenged the accuracy of the state-level lawsuit that had been filed in Georgia, the three sources said.
- Herschmann complained to multiple people in and out of the White House that he thought this request was "crazy."
- Axios has not yet established how Trump came to sign the verification or who presented him with the document to do so.
The big picture: Together, the emails obtained by Axios and those reviewed by Judge Carter show that at least two of Trump's attorneys — Herschmann and Eastman — explicitly raised concerns about having the president sign a sworn statement making specific claims about voter fraud that were inaccurate.
Flashback: In the final weeks of Trump's term, Herschmann grew exasperated by the conspiracy theorists and fringe legal activists that the president surrounded himself with as he sought to cling to power.
- In a taped deposition played during a Jan. 6 hearing this summer, Herschmann testified that he told Eastman the day after the Capitol riot: "I only want to hear two words coming out of your mouth from now on, 'orderly transition'."
- Herschmann told the committee Eastman eventually repeated the words back to him.
- "Now I'm going to give you the best free legal advice you're ever getting in your life," Herschmann testified he added. "Get a great f'ing criminal defense lawyer. You're gonna need it."