In the days following the FBI’s search at Mar-a-Lago, Donald Trump claimed that the developments “came out of nowhere.” It was among the former president’s more outlandish claims about the scandal.
After all, officials from the Justice Department and the National Archives spent months pleading with the Republican and his team, urging them to comply with the law and return the sensitive materials Trump improperly took. Those appeals were ignored.
But there’s fresh evidence that Trump wasn’t just under pressure from officials outside his political operation, he also was facing related reminders from one of his own lawyers. The New York Times reported overnight:
A onetime White House lawyer under President Donald J. Trump warned him late last year that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office, three people familiar with the matter said. The lawyer, Eric Herschmann, sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material, the people said.
If the Times’ reporting — which has not been independently verified by MSNBC or NBC News — is accurate, it raises some difficult questions for the former president. For one thing, he won’t be able to credibly claim he didn’t know keeping classified materials was wrong if one of his former lawyers specifically warned him not to do this.
For another, there are statutory concerns. Ryan Goodman, an NYU law professor and former special counsel at the Pentagon, noted overnight that the Espionage Act requires proof that a suspect “willfully” retained information related to national security. If it’s true that Herschmann “sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material,” and the former president blew him off because he wanted to keep the materials, it’ll be that much easier for federal prosecutors to make their case.
Finally, let’s not overlook the unanswered question about how the Times came to learn about the late 2021 conversation between the former White House lawyer and the former president. The Times did not disclose how it came to learn about alleged discussion, but it’s hard not to wonder whether Herschmann himself played a role in confirming the relevant details. Or put another way, the lawyer didn’t just warn his former client about the dangers of keeping stolen documents, it appears the lawyer also wants us to know he warned his former client about the dangers of keeping stolen documents. All of this, of course, comes on the heels of revelations from the Jan. 6 committee’s hearings, which presented Herschmann as a figure who worked behind the scenes against Team Trump figures who tried to overturn the election results.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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