So far, the January 6 Committee hearings are playing out like a sorting hat episode with high-profile Trumpland lawyers either sticking to their election lie guns or desperately clamoring to get on the record as never believing that Trump won the election and always sober-minded about Trump’s unfounded voter fraud claims. Bill Barr’s video testimony is a master class in whitewashing as the former AG comically overplays the role of foul-mouthed straight-shooter as he flings his boss and everyone around him as wild-eyed maniacs that only Barr had the integrity to resist… by resigning and running away.
But another figure cropping up in the committee’s video testimony to share his disdain for the Big Lie is Eric Herschmann. The Trump impeachment lawyer who left Kasowitz Benson Torres to work at the White House offered some choice words for Coups 4 Dummies attorney John Eastman. In a clip of testimony shown during the hearing, Herschmann said he told Eastman on January 7:
“I said to him, ‘are you out of your F-ing mind?’ I said, ‘I only want to hear two words coming out of your mouth from now on: ‘orderly transition.’”
That’s a fair message to send the disgraced former law school dean who fluffed Trump’s zany theory that the Vice President can unilaterally overturn elections. But, um, when exactly did Herschmann decide that Eastman was quote-unquote, out of his F-ing mind?
Sure, he said these words on January 7, but was he really unable to recognize how stupid this all was until then? Because back on January 6, when Donald Trump hauled Eastman and Giuliani on stage to rally the crowd to force Mike Pence to “do the right thing,” Herschmann appears to have been right there in the middle of it.
So… where were these admonitions before the rally? If he was already convinced Eastman was a nutcase, why was he all smiles knowing Eastman was about to get the world’s largest megaphone to spread his insane theory? It wasn’t as if Trump hid the ball about the arguments behind the January 6 rally.
Or did Herschmann only come to this conclusion about Eastman after a mob stormed the Capitol trying to hang Pence? Because I’m all for people being late to the party, but it doesn’t really redound to his benefit as a legal advisor if he only figured out that Eastman was a loon after folks stormed the Capitol based on this nonsense.
It’s not as if the quality of a legal theory turns on how it plays out. If this was all a post hoc evaluation of Eastman’s theory, it seems the conclusion rests less on the strength of the legal theory and more on the strength of where Herschmann wanted to position his own reputation for the inevitable investigation.
We’re only seeing snippets of testimony, but I have so many questions!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.