Subpoena of Trump’s Lawyer Confirms Classified-Docs Probe Is Now an Obstruction Probe

T he special counsel appointed by the Biden Justice Department to investigate Donald Trump’s illegal retention of national-defense information at his Mar-a-Lago estate is pursuing testimony from a Trump lawyer on the theory that the former president is guilty of obstruction.

This latest twist confirms what I’ve already argued elsewhere this week: Because President Joe Biden’s own classified-documents scandal makes it politically untenable for Special Counsel Jack Smith to prosecute Trump for mishandling classified documents, Smith is shifting the emphasis of his probe to Trump’s alleged obstruction of the investigation.

The New York Times reports that Smith has asked a federal court to invoke the so-called crime–fraud (C–F) exception to the attorney–client (A–C) privilege in order to force Trump lawyer M. Evan Corcoran to testify about his communications with Trump.

Under the A–C privilege, the law shields from disclosure communications in which attorneys impart legal advice to their clients. The C–F exception applies, however, if a party seeking disclosure — often, a prosecutor conducting a criminal investigation — can satisfy a judge that the communications in question were probably in furtherance of an ongoing crime or fraudulent scheme. If the judge finds that the C–F exception applies, then the attorney must testify about the communications.

In this instance, Smith’s team is arguing that Trump obstructed the government’s investigation of his retention of classified documents.

To recap, that probe began in spring 2022, when the Justice Department issued a grand-jury subpoena demanding that Trump surrender any documents in his possession that bore classification markings. Corcoran was (and remains) Trump’s private lawyer, and he was principally responsible for negotiating the handover of documents with prosecutors. DOJ had gotten involved when it turned out that 15 boxes of presidential records that Trump surrendered to the National Archives — after months of haggling — were found to contain 184 classified documents (including 25 with top-secret classification). In May, prosecutors issued the grand-jury subpoena.

In responding to the subpoena, Corcoran is said to have worked with the former president and other Trump aides, including another lawyer, Christina Bobb, who functioned as the records custodian for Trump’s post-presidency. The Trump team subsequently invited a Justice Department official and the FBI to Mar-a-Lago to take custody of a package of documents. In lieu of a grand-jury appearance, the DOJ asked the Trump team to provide a sworn statement averring that a diligent search had been conducted and that what was being surrendered constituted the entirety of documents bearing classified markings that were on the premises.

The Mar-a-Lago meeting occurred on June 3. Trump was there briefly, popping his head in to welcome the government visitors and, he has claimed, assure them of his cooperation. Corcoran and Bobb presented the government with a package containing 38 documents bearing classification markings. Trump’s lawyers made no suggestion that the documents had been declassified (despite Trump’s later claims that they had been), and the painstaking manner in which the package was wrapped indicated awareness that it contained sensitive intelligence. The Trump lawyers also presented the government with the sworn statement that had been requested. The statement was signed by Bobb; she has since indicated publicly that Corcoran was its main author, and that he had supervised the search for documents in response to the subpoena.

About two months after the June 3 meeting, in seeking a judicial warrant to search Mar-a-Lago, the FBI related to a Florida federal court that its continuing investigation had uncovered evidence that Trump was still hoarding classified intelligence at his estate. On August 8, bureau agents executed the search warrant at Mar-a-Lago and seized about 100 more documents bearing classification markings. In issuing the warrant three days earlier, a federal magistrate judge found probable cause that Trump had committed three felonies. Among them was the violation of an obstruction statute that makes it a crime to conceal documents with intent to obstruct a government investigation.

Smith took over the probe when he was appointed by Biden’s attorney general, Merrick Garland, on November 18. Since then, Corcoran and Bobb have both reportedly appeared before the grand jury. Obviously, at least one of them — Corcoran — has sought to avoid testifying (or at least to avoid answering some questions) by invoking the A–C privilege.

Undoubtedly, in arguing that the C–F exception vitiates any claim that Trump–Corcoran conversations are shielded by the A–C privilege, Smith is pointing out that the Florida federal court’s finding of probable cause establishes that Trump was obstructing the investigation.

Importantly, a ruling in favor of the prosecutor on the C–F-exception issue would not equate to a finding that Trump is guilty of obstruction. The standard for holding that the C–F exception applies is less demanding than the “beyond a reasonable doubt” standard that applies in a criminal case. (We’ve covered this point as it relates to the House January 6 committee, and specifically to California federal district judge David O. Carter’s ruling that the C–F exception applied to Trump lawyer John Eastman’s emails, based on Carter’s assessment that Trump and Eastman had likely conspired to obstruct Congress and defraud the government in connection with efforts to undo the 2020 election. Carter’s ruling was not a finding of guilt; it was just a finding that the C–F exception applied to defeat reliance on the A–C privilege.)

President Biden’s flacks have emphasized what they describe as his complete cooperation with investigators scrutinizing his own classified-documents violations, including his consent to have the FBI search his homes in Delaware and his private office in Washington, D.C. Similarly, Trump’s former vice president, Mike Pence, who has also been found to have unlawfully retained classified information in his Indiana home, has stressed his cooperation in self-reporting his transgression and allowing the FBI to search the property.

In this, Biden and Pence are pointedly distinguishing themselves from Trump. They underscore that Trump zealously fought the government’s efforts to obtain the presidential records he was retaining; and, after the court issued the search warrant upon finding that he was obstructing the investigation, the FBI seized dozens more apparently classified documents from Mar-a-Lago that he had refused to surrender.

The Biden Justice Department and its special counsel have spent months building what they see as an overwhelming case that Trump illegally retained government intelligence. Yet, Biden’s embarrassingly similar transgressions make a classified-documents prosecution of Trump politically problematic. So now, it’s a case of obstruction — a crime that Biden apologists will insist he did not commit, but Trump did.