As World Waits on Manhattan DA, Judge Orders Trump Lawyer to Testify in Mar-a-Lago Obstruction Probe

It now seems DA Alvin Bragg’s grand jury won’t indict the former president today. But Trump world is still struggling to put out multiple legal fires at once.

W ell, we try not to steer you wrong around here.

We’ve told you two things. First, once one prosecutor crossed the Rubicon by teeing up criminal charges against former president Donald Trump, other prosecutors would step up the pace of their Trump investigations. Second, special counsel Jack Smith’s Mar-a-Lago classified-documents probe — the most serious criminal investigation against Trump because of the potential charges and weight of the evidence — is at this point essentially a grand-jury obstruction investigation rather than an inquiry into the mishandling of secret intelligence.

Now we learn that, as the world waits for Alvin Bragg, Manhattan’s elected Democratic progressive prosecutor, to obtain an indictment against Trump in the farcical Stormy Daniels caper (an indictment that the grand jury could approve as early as this afternoon), Smith has persuaded a federal judge to invoke the crime-fraud doctrine in forcing Trump lawyer M. Evan Corcoran to testify and surrender his notes.

As we’ve explained in other Trump-related contexts, the crime-fraud exception to the attorney–client privilege (ACP) holds that communications between lawyers and their clients lose their confidentiality (i.e., their protection from disclosure to prying investigators) if it seems likely they were made in furtherance of the commission of a crime. In this instance, the crime the special counsel has invoked is an alleged scheme by the former president to obstruct the grand-jury investigation of his retention of hundreds of classified documents at his Mar-a-Lago estate — an unauthorized location for such documents.

Trump, of course, is a subject of multiple criminal investigations. But in my view, the Mar-a-Lago probe puts him in the most jeopardy. The classified-document offenses are not necessarily the most serious set of offenses under investigation; the Democrats’ top aim, and thus the Biden Justice Department’s top aim, has been to nail him for an offense arising out of the Capitol riot. The Mar-a-Lago investigation, however, involves serious crimes that are more straightforward to prove, and the evidence that Trump committed those crimes appears overwhelming — whereas the theories that could cast him as criminally culpable (as opposed to morally or politically culpable) for the events of January 6, while not frivolous, are dubious.

On Mar-a-Lago, the problem for Smith, the Biden DOJ-appointed special counsel, has been political rather than legal. As the calendar turned to 2023, just when it appeared that the Justice Department was cruising toward a Trump indictment, prosecutors and the rest of the country were rocked by the revelation that President Biden, too, had illegally hoarded classified documents — and, indeed, appears to have been a serial offender in this regard for decades, going back to his years in the Senate. With the Obama–Biden Justice Department having already let Hillary Clinton off the hook for egregiously mishandling classified intelligence through her use of a home-brew private email system (among other crimes), Biden DOJ prosecutors knew from the outset of the Mar-a-Lago probe that they would struggle to explain why Trump’s misconduct was so uniquely awful that it warranted prosecution; ergo, they could not afford the revelations that Biden had himself mishandled national-defense information.

The problem became even more acute when it soon emerged that putative choirboy and former vice president Mike Pence, too, had illegally retained classified documents in his home and — also like Biden and Trump — kept other non-classified government records that should have been turned over to the National Archives and Records Administration (NARA).

The special counsel’s evidence against Trump in the Mar-a-Lago case seems daunting. There is no gainsaying that Trump lawlessly retained hundreds of classified records (some of them in the most sensitive top-secret categories). And his oft-invoked claim that he declassified the documents is neither a legal defense nor, apparently, true. That is, the documents need not be classified in order to be national–defense information, which is what the Espionage Act makes it a crime to mishandle (though the fact that documents are marked classified is powerful evidence that they are, in fact, national-defense information); and there is no evidence that Trump declassified anything, notwithstanding that (a) there are government procedures for declassification (though they probably don’t apply to the president), and (b) the Presidential Records Act requires presidential declassification decisions to be memorialized in writing (though the courts have never ruled on whether Congress had the power to impose that requirement on the executive).

Obviously, however, the Biden Justice Department is not going to allow Biden to be charged with illegally retaining classified documents (an investigation is being conducted by special counsel Robert Hur, but Biden attorney general Merrick Garland would make the ultimate decision on charges). So a big part of Smith’s job is to distinguish Trump’s case from Biden’s. And the way he’s doing that is to highlight Trump’s suspected obstruction of the grand jury (which, the theory goes, compares unfavorably to Biden’s — and Pence’s — posture of complete cooperation with investigators).

In the spring of 2022, the Justice Department and FBI learned that (a) Trump had been uncooperative during NARA’s months-long effort to obtain custody of thousands of government records that he’d retained at Mar-a-Lago, and (b) those records included sensitive intelligence.  Prosecutors thus issued a grand-jury subpoena — essentially, a compulsion order enforceable by law — requiring Trump to turn over all documents marked classified in his possession.

Corcoran is said to have been the Trump lawyer who took the lead in responding to the subpoena. In that capacity, he had conversations with Trump, oversaw a search for documents on the property (presumably based on what Trump told him), and worked with another Trump lawyer, Christina Bobb (who was functioning as custodian of Trump’s post-presidential office), to produce a package of documents marked classified.

In early June 2022, Corcoran and Bobb met with three FBI agents and a DOJ lawyer at Mar-a-Lago — a meeting at which it is believed Trump made a brief, just-to-say-hello-and-we’re-here-to-help-you appearance. Corcoran and Bobb presented for transmission to the grand jury (1) a carefully wrapped package containing approximately 38 documents bearing classification markings; and (2) a sworn statement, signed by Bobb but principally drafted by Corcoran, indicating that a thorough search of the Mar-a-Lago premises had been conducted and the documents in the package were the only ones in Trump’s possession that were marked classified.

We now know the sworn representations to the grand jury and the investigators were false. In a nutshell, the FBI continued its investigation, developed evidence that Trump still held more classified documents at Mar-a-Lago, got a search warrant from a judge in early August (on a finding of probable cause that Trump was not only retaining national-defense information but obstructing the investigation), and executed the warrant on August 8, seizing over 100 more classified documents (in addition to thousands of other government records).

Based on these facts, the special counsel is framing the Mar-a-Lago case as one of obstruction, with classified-document retention reduced to a subplot. Thus, Smith issued a grand-jury subpoena for Corcoran, demanding that he testify and provide other relevant evidence regarding the incomplete document-production in June, including his conversations with Trump. Corcoran refused to comply insofar as his communications with Trump were concerned, citing the attorney–client privilege. Smith countered that the ACP was unavailing because Trump was engaged in a scheme to deceive the authorities — going back to his recalcitrance when NARA officials began trying to obtain custody of the government records held at Mar-a-Lago in early 2021 — and specifically to mislead the grand-jury investigation regarding the documents in his possession.

ABC News reports, citing anonymous sources, that Judge Beryl Howell issued a ruling late last week siding with the special counsel against Corcoran. Up until Friday, Howell was the chief federal district judge for the District of Columbia. She is not retiring, as some reports have intimated. It is traditional that the incumbent keeps the “chief” designation for a few years and then relinquishes it so another colleague can take it. But it’s an especially important position in D.C., because the court’s local rules make the chief judge the supervisor of grand-jury matters — meaning she rules on any disputes that arise in such matters.

Before being named to the bench by President Obama, Howell was the top Democratic lawyer on the Senate Judiciary Committee, under its then-chairman, Pat Leahy, a notoriously sharp-elbowed partisan. To say she is not a Trump fan is putting it mildly. While that does not necessarily mean her rulings are skewed against him, it is not a surprise that special counsel Robert Mueller centered his investigation in Washington, where Howell would rule on such disputes as Mueller’s efforts to force lawyers to testify (a marked contrast from the Hillary Clinton emails investigation, where the Obama–Biden Justice Department allowed Clinton’s lawyers to restrict the FBI’s scrutiny of evidence).

Howell reportedly concluded that Smith had made a “prima facie showing that the former president had committed criminal violations.” That is, she is not concluding that Trump is guilty beyond a reasonable doubt, just that the special counsel presented enough evidence that Trump probably engaged in crimes to trigger the crime-fraud exception to the ACP. We last visited this distinction during the House January 6 committee proceedings. The committee there placed great weight on a ruling by California federal judge (and Clinton appointee) David O. Carter that Trump lawyer John Eastman’s invocation of the attorney–client privilege was unavailing. Carter reasoned that Eastman and Trump had probably violated criminal laws against obstructing Congress and defrauding the government, triggering the crime-fraud exception. As I then explained, at issue in these cases is the investigator’s access to evidence, not the ultimate question of guilt or innocence; therefore, the bar for prosecutors to clear is lower — essentially, they must present enough evidence to prove that the attorney–client communications in question more likely than not furthered the commission of a crime.

The ABC report elaborates:

Sources added that Howell also ordered Corcoran to hand over a number of records tied to what Howell described as Trump’s alleged “criminal scheme,” echoing prosecutors. Those records include handwritten notes, invoices, and transcriptions of personal audio recordings.

Besides railing on his social-media platform about the “ILLEGALLY LEAKED false allegations from a Never Trump, now former chief judge, against the Trump legal team,” Trump has sought an emergency stay of Howell’s ruling from the D.C. Circuit Court of Appeals. That tribunal, which has not been moved by Trump’s various attempts to block investigations of him since he left office, granted a temporary stay but on a head-spinningly rapid schedule: Trump had to get his brief in by midnight, and then the special counsel had to respond by 6 a.m. this morning. I’d imagine the Trump team is already planning to seek a stay from the Supreme Court, since a ruling by the D.C. Circuit against the former president seems certain, and imminent.

The latest reports indicate that Bragg’s indictment of Trump in the Stormy Daniels kerfuffle is imminent, though it will not occur until tomorrow (Thursday) at the earliest. Whenever it happens, as we’ve repeatedly observed, there’s more coming on several other investigative fronts. The domino effect is starting to kick in.