Special Counsel Is Closing In On Classified Documents Prosecution Of Trump

The New York Times reports, Judge Rules Trump Lawyer Must Testify in Documents Inquiry:

A federal judge has ruled that prosecutors overseeing the investigation into former President Donald J. Trump’s handling of classified documents can pierce the assertion of attorney-client privilege and compel one of his lawyers to answer more questions before a grand jury, two people familiar with the case said on Friday.

In making her ruling, the judge, Beryl A. Howell, found that the government had met the threshold for a special provision of the law known as the crime-fraud exception. That provision allows prosecutors to work around attorney-client privilege when they have reason to believe that legal advice or legal services have been used in furthering a crime.

The New York Times reported last month that prosecutors had asked Judge Howell to apply the crime-fraud exception to the grand jury testimony of M. Evan Corcoran, a lawyer who has represented Mr. Trump since last spring, as the documents investigation began heating up. Mr. Corcoran in recent months appeared before the grand jury and asserted attorney-client privilege while declining to answer certain questions.

Attorney-client privilege is a bedrock legal principle designed to protect private communications between lawyers and those they represent. Judge Howell’s ruling, issued under seal, that the crime-fraud exception applies in this case is important because it places the imprimatur of a federal judge on prosecutors’ contention that Mr. Corcoran’s legal work may have been used in the commission of a crime.

It remained unclear what crime prosecutors are asserting may have been committed — or who may have committed it. But among the subjects that the Justice Department has been examining since last year is whether Mr. Trump or his associates obstructed justice by failing to comply with repeated demands to return a trove of government material he took with him from the White House upon leaving office, including hundreds of documents with classified markings.

* * *

Last May, before Jack Smith took over the investigation as a special counsel, federal prosecutors issued a subpoena for any classified documents still in Mr. Trump’s possession — a move taken after he had voluntarily handed over an initial batch of records to the National Archives that turned out to include almost 200 classified documents.

In response to the subpoena, Mr. Corcoran met with federal investigators in June and gave them another set of documents, more than 30 of which carried classification markings. He then drafted a statement for another lawyer [part-time OAN correspondent Christina Bobb] to give the Justice Department saying that a “diligent search” had been conducted at Mar-a-Lago, Mr. Trump’s club and residence in Florida, and that no more classified materials remained there. [This was a false affidavit.]

Roughly three weeks after Mr. Corcoran’s meeting with investigators, federal prosecutors issued another subpoena — this one for surveillance footage from a camera near a storage room at Mar-a-Lago. Among the subjects that Mr. Smith’s office wants Mr. Corcoran to testify about is a phone call he had with Mr. Trump around the time the subpoena for the video footage was issued, according to a person familiar with the matter.

The surveillance footage obtained through the subpoena showed at least one Trump aide moving boxes that had been held in the storage room. That prompted prosecutors to escalate their investigation and seek a search warrant for Mar-a-Lago.

In early August, F.B.I. agents armed with the warrant descended on the property and carted away more than 100 additional classified documents. The affidavit submitted by the Justice Department to obtain the warrant said that there was “probable cause to believe that evidence of obstruction” would be found in the search.

Now that Mr. Smith has obtained an order forcing Mr. Corcoran to testify, Mr. Corcoran can appear before the grand jury and answer its questions, or appear and invoke his Fifth Amendment right against self-incrimination. He did not respond on Friday to messages seeking comment.

[J]udge Howell has been handling these secret proceedings as the chief judge of Federal District Court in Washington. But she stepped down on Friday from that role as part of a normal rotation and was replaced by a new chief judge, James E. Boasberg.

“On her final day as the top judge in the District of Columbia on Friday afternoon—in her final act—Chief Judge Beryl A. Howell did more than grant the Justice Department permission to question former President Donald Trump’s personal attorney. She actually took the rare step of handing over the lawyer’s notes to federal prosecutors, according to a person familiar with the arrangement.” Federal Judge Hands Over Trump’s Lawyer’s Notes to DOJ:

In doing so, Howell may have planted the seeds for a future constitutional challenge. But in the immediate term, she’s handed Justice Department Special Prosecutor Jack Smith a parting gift: what she deemed evidence of a crime involving the former president improperly hoarding classified documents after he left office.

M. Evan Corcoran, a former federal prosecutor, has represented Trump in that classified documents scandal. And while Corcoran already has his hands full as Trump’s lawyer, the probe now appears to have put Corcoran in legal jeopardy himself.

According to a source, Corcoran’s professional notes about private communications with his client were turned over to Judge Howell, who was conducting an “in camera review”—a carefully controlled screening of confidential records that typically takes place in a judge’s chambers.

Judges who come to the conclusion that some legally protected and sensitive material must be turned over to an opposing side normally issue an order directing one side to do it, along with a deadline. Doing so gives the losing side the ability to appeal to a higher court—and prevent irreversible damage that could forever taint a case, according to two lawyers not involved in the case who spoke to The Daily Beast but asked not to be identified.

But Howell appears to have skipped that careful yet tedious approach—and just handed Smith a batch of documents that may show Trump and one of his lawyers planning a crime.

Either way, Trump’s legal team is left without recourse, and federal prosecutors have more evidence to bolster the next steps in their ballooning investigation.

She’s taken all the legal relief out of their hands. If she orders them to do it, they can take up an appeal on an emergency basis. She may have been concerned from what she read in the documents. She may have not trusted them to comply with an order,” said David Cross, an experienced federal litigator at the Washington firm Morrison & Foerster who is not involved in the Trump case.

[I]n turning over his notes, Howell’s alleged actions stand in stark contrast with the more traditional approach taken by a federal judge in California who faced similar questions last year. In that case, the Jan. 6 Committee was trying to access documents protected by attorney-client privilege to explore how Trump employed conservative legal scholar John Eastman in an attempt to stay in power after losing the 2020 election.

U.S. District Court Judge David O. Carter concluded that “President Trump and Dr. Eastman more likely than not committed obstruction of an official proceeding… and conspiracy to defraud the United States.” But when he ordered on June 7, 2022 that Eastman turn over 159 documents to the congressional committee, he gave Eastman a day to comply.

* * *

Howell’s last-minute decision in the Trump case could mark a turning point in the special counsel’s probe, because it has the ability to supercharge the investigation. But notably, the saga keeps playing out behind closed doors. Her orders in this case remain sealed, and the grand jury investigation continues in legally protected secrecy.

[So] while Trump’s legal skrimaging in open court against the New York Attorney General allows the American public to see how the Trump Organization has flouted subpoenas and slowed down investigators, this Justice Department effort continues largely in the shadows—even though the consequences could be far more serious.

Federal prosecutors have been exploring criminal charges against the former president for inciting the Jan. 6 insurrection, defrauding the nation and its courts with bogus election fraud conspiracies, and the way he refused to return classified documents kept at his South Florida oceanside estate of Mar-a-Lago long after leaving the White House.

Shit is about to get real for Trump’s corrupt attorneys, M. Evan Corcoran and Christina Bobb. They can be charged with obstruction of justice or they can cut a deal to testify against their client, Donald Trump.

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1 thought on “Special Counsel Is Closing In On Classified Documents Prosecution Of Trump”

  1. Jennifer Rubin writes, “Judge Howell delivers another blow to Trump and his lawyer”, https://www.washingtonpost.com/opinions/2023/03/20/judge-howell-ruling-trump-corcoran-testify/

    U.S. District Judge Beryl A. Howell ruled in a sealed opinion that Trump’s attorney Evan Corcoran must not only answer questions regarding his client’s alleged retention of documents and obstruction of investigators but also turn over his notes. The reason for piercing the normally inviolate attorney-client privilege: the crime-fraud exception.

    At issue, it seems, is the statement Corcoran prepared attesting that Trump’s legal team had made a “diligent search” of boxes of documents. (A subsequent search conducted pursuant to a warrant turned up hundreds of classified documents Trump had not returned.) Howell held that because there was sufficient evidence that Trump and Corcoran participated in a crime (e.g., violation of the Espionage Act, obstruction of justice), Trump lost the benefit of attorney-client privilege. Put differently, if he and Corcoran, for example, were working to deceive investigators or willfully retain highly sensitive documents, their conversations and any documents in furtherance of such crimes must be disclosed to the grand jury.

    [L]egal scholars and former prosecutors describe Howell as “a careful and fair-minded jurist,” as constitutional scholar Laurence H. Tribe put it. Before directing him to waive privileges, the judge, in all likelihood, provided Corcoran with an opportunity to appeal, Tribe and several former prosecutors tell me.

    Legal scholar Joshua Matz tells me, “Courts do not lightly pierce attorney-client privilege on the basis of the crime-fraud exception, and doing so here signals a judicial understanding that some of the relevant communications likely involved ongoing or future crimes.”

    This is not the first time Howell has addressed the crime-fraud exception. Former prosecutor Andrew Weissmann, part of Robert S. Mueller III’s investigative team, tells me that she “has ruled on this exact issue in the [Paul] Manafort case and therefore must know her ruling is rock solid.” Weissmann adds, “I also think it surely means the attorney notes must be exceedingly important evidence.”

    In the Manafort case, Howell required a lawyer of the investigation’s targets to testify about false submissions made under the Foreign Agent Registration Act because the submissions were made in furtherance of a crime. The attorney, for example, had to explain the source of the untrue factual representations. Howell also found in the Manafort case that the privilege was waived when the submissions were turned over to the government. (In Trump’s case, the statement likely at issue — attesting a diligent search had been conducted — was likewise submitted to the government.)

    Just Security’s Ryan Goodman reminds us that White House attorney Eric Herschmann seemed to warn Corcoran against improperly attempting to tamper with his testimony, an indication that Corcoran’s potential criminal liability might extend beyond the Mar-a-Lago document issue.

    Trump attorney Christina Bobb, who signed the statement Corcoran drafted but with the caveat “to the best of my knowledge,” reportedly agreed to cooperate with investigators. It seems that Trump has a habit of ensnaring his attorneys in allegedly illegal activities.

    If this seems like deja vu, it’s because another district court judge, David Carter, delivered a similar ruling in a different matter (regarding the Jan. 6 committee subpoena) relating to a different attorney (John Eastman) and a different potential crime (defrauding the United States and obstruction of an official proceeding). There, Carter ruled that Trump and Eastman more likely than not had engaged in criminal conduct, which forfeited attorney-client privilege. Carter also required Eastman turn over certain documents to the House select committee.

    How unusual is all this? Twice in the space of a few months two federal court judges found the same client likely engaged in illegal conduct with the assistance of his lawyers. “I have never encountered the invocation of the crime-fraud exception in my roughly two decades of criminal law practice,” says former prosecutor and criminal defense lawyer Renato Mariotti. “So that is pretty unusual!”

    Howell’s ruling means she has already seen substantial evidence of Trump’s illegal conduct. Although conviction requires proof beyond a reasonable doubt, Howell’s ruling ensures that Corcoran, a witness with intimate knowledge of Trump’s mind-set and actions, will provide prosecutors with even more ammunition against Trump, unless he invokes the Fifth. In a case with well-established facts, multiple witnesses and clearly applicable federal laws that carry steep penalties, Trump’s own counsel could deliver a fatal legal blow.

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