San Diego Union-Tribune

COURT: LAWYER MUST SHARE RECORDS

Panel rejects Trump camp’s effort to keep materials private

- BY ALAN FEUER, BEN PROTESS & MAGGIE HABERMAN Feuer, Protess and Haberman write for The New York Times.

A federal appeals court ruled Wednesday that a lawyer representi­ng former President Donald Trump in an inquiry into his handling of classified materials had to return to a grand jury investigat­ing the case to answer its questions and give prosecutor­s what are likely to be dozens of documents related to his legal work for Trump.

The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigat­ion for the Justice Department and came after a lightning round of filings that began Tuesday evening when Trump sought an order to stop the lawyer, M. Evan Corcoran, from handing over documents to investigat­ors.

The pitched behind-thescenes legal fight shed new light on the efforts by prosecutor­s to assemble evidence about whether Trump committed a crime in defying the government’s efforts to reclaim the classified materials he took with him after leaving the White House.

It played out into Wednesday as a separate legal proceeding involving Trump — the Manhattan district attorney’s considerat­ion of whether to seek an indictment of the former president on charges related to a hush-money payment to a porn actress — remained unresolved, with the grand

jury hearing evidence in that case not meeting as planned on Wednesday.

As a legal matter, the litigation — all of which has taken place behind closed doors or under seal — centers on whether prosecutor­s can force Corcoran to provide informatio­n about who knew what about the continued presence of classified material at Mar-a-Lago, the former president’s residence and private club in Florida, after the government had demanded its return last spring.

In particular, prosecutor­s have been focused on a document that Corcoran drafted for another lawyer to give last spring to the Justice Department stating that a “diligent search” had been conducted at Mar-a-Lago and that no further classified material remained there — an assertion that would be proved false. Prosecutor­s have been seeking to learn what Trump knew about that statement, according to people briefed on the matter.

The case involves a balancing act between attorney-client

privilege, which generally protects lawyers from divulging private communicat­ions with their clients to the government, and a special provision of the law known as the crime-fraud exception. That exception allows prosecutor­s to break through attorney-client privilege when they have reason to believe that legal advice or legal services have been used in furthering a crime, typically by the client.

The spat began last month when the office of the special counsel, Jack Smith,

sought to pierce assertions of attorney-client privilege that Corcoran and Trump had made in the documents inquiry. In an initial appearance before a grand jury investigat­ing the case, Corcoran had asserted the privilege as a way to limit the scope of the questions he would have to answer as well as the number of legal records he would have to turn over.

But in seeking to obtain as much informatio­n from Corcoran as it could, Smith’s office invoked the crimefraud exception in a filing to

Judge Beryl Howell, who sits in U.S. District Court in Washington. Prosecutor­s working for Smith wanted Howell to set the attorneycl­ient privilege aside and compel Corcoran to give them what they wanted.

On Friday, Howell issued a ruling saying that the government had indeed met the threshold to invoke the crime-fraud exception and that prosecutor­s had made a preliminar­y case that Trump had violated the law in the documents case.

Howell’s finding that “the government had made a prima facie showing that the former president committed criminal violations” did not mean prosecutor­s necessaril­y had enough evidence to charge Trump. Rather, it was enough to justify setting aside attorney-client privilege and requiring Corcoran to divulge informatio­n about his interactio­ns with Trump.

The appeals court’s decision concerning Corcoran left open a lingering threat to the government’s case. While the court allowed Howell’s ruling compelling Corcoran to provide informatio­n to prosecutor­s to stand for now, it also permitted the underlying appeal of the decision to move forward.

That move opened the possibilit­y that if the appeals court — or the Supreme Court — ultimately ruled that the government’s arguments about the crime-fraud exception were wrong, prosecutor­s would be barred from using the informatio­n Corcoran had provided as evidence to seek any grand jury indictment or in any trial.

 ?? JOSE LUIS MAGANA AP ?? Attorney M. Evan Corcoran has been ordered to hand over materials related to the handling of classified documents by former President Donald Trump and his team.
JOSE LUIS MAGANA AP Attorney M. Evan Corcoran has been ordered to hand over materials related to the handling of classified documents by former President Donald Trump and his team.

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