COURT: LAWYER MUST SHARE RECORDS
Panel rejects Trump camp’s effort to keep materials private
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.