Crime-Fraud Exception
Courts order Trump lawyer to hand over records showing plausible classified documents crimes
A three-judge panel of the U.S. Court of Appeals in Washington, D.C., on Thursday directed a lawyer for former President Donald Trump to provide documents to prosecutors investigating Trump's retention of classified documents at his Mar-a-Lago club in Florida. The judges upheld an order issued Friday by U.S. District Judge Beryl Howell in which she agreed with prosecutors that the documents in question offered "prima facie" evidence "that the former president committed criminal violations," ABC News and The New York Times report.
Howell's order opened the way for Special Counsel Jack Smith's office to use the "crime-fraud" exception to attorney-client secrecy and compel Trump lawyer M. Evan Corcoran to hand over notes, transcripts of recordings, and invoices related to his work for Trump on the documents case, The Washington Post reports, citing people familiar with the matter. Those documents show his services may have been used to obstruct the government's attempts to recover highly classified documents, the Post adds.
Corcocan is also expected to testify before the grand jury again as soon as Friday, ABC News reports. In his previous testimony, earlier this year, Corcocan had invoked attorney-client privilege to rule out discussing certain topics.
After Trump's team turned over boxes of improperly retained documents to the National Archives in January 2022, including classified documents, the Justice Department issued a subpoena in May, demanding any other classified documents in Trump's possession. In early June, Trump's team gave Justice Department officials another 30 or so classified documents — and a signed certification that a "diligent search" of Mar-a-Lago showed Trump had no more classified files.
Trump attorney Christina Bobb told investigators last fall — after the FBI found dozens of additional classified and top secret documents at Mar-a-Lago in an Aug. 8 search — that Corcoran had drafted the false statement and asked her to sign it. Smith's team wants to know what steps Corcoran took to determine there were no more classified documents at Mar-a-Lago, what Trump knew about the sworn certification, and what he and Trump discussed in a June 24 phone call about Justice Department demands for surveillance footage from Mar-a-Lago, ABC News reports.
The appellate court ruling was a significant victory for the Justice Department, but it "left open a lingering threat to the government's case," allowing Trump's appeal of Howell's ruling to proceed even as prosecutors gain access to Corcoran's information, the Times reports. "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," which could potentially "prove fatally damaging" to the government's case. Briefs for the appeal are due in May.