Federal Appeals Court Rejects Trump Stay Request, Ordering His Lawyer to Provide Information on Mar-a-Lago to Special Counsel

Earlier this afternoon, we posted my column on a federal judge’s ruling that a lawyer for Donald Trump in the special counsel’s investigation of his illegal retention of classified intelligence must testify and surrender key documents, including notes of conversations he had with Trump before he and another Trump lawyer provided a grand jury and investigators with what turned out to be a factually false representation that Trump had surrendered all documents marked classified. As explained in the column, the former president sought an emergency stay in the D.C. Circuit Court of Appeals, which granted it very temporarily but appeared poised to rule against Trump given the jaw-droppingly tight schedule set by the three-judge panel.

Now, as expected, the appellate court has ruled that Trump’s lawyer, M. Evan Corcoran, must comply with the grand-jury subpoena issued by the Biden Justice Department–appointed special counsel, Jack Smith, as directed by District Judge Beryl Howell. That includes surrendering the documents, which are said by the Washington Post to include “notes, transcripts of recordings, and invoices in [Corcoran’s] possession.” The ruling came Wednesday afternoon.

Judge Howell, who has just stepped down as the chief federal judge in the District of Columbia District Court, is an Obama appointee. The three-judge panel that ruled against Trump this afternoon included two Biden appointees, Judges Florence Pan and J. Michelle Childs, as well as Obama appointee Cornelia T. L. Pillard.

Because the dispute relates to an ongoing grand-jury investigation, it is secret under federal law. That is, all of the briefs and court rulings remain under seal, including the appellate panel’s just-issued decision.

As the New York Times reports, Corcoran had begun complying with Judge Howell’s ruling late Tuesday when, suddenly, Trump — apparently through other lawyers — sought a stay of the ruling, which would enable Corcoran to stop complying while Trump challenged it. The appeals court accommodated the former president, but barely and in a way that suggested it thought little of his contentions. Trump’s team was directed to file its papers by midnight (just a few hours later), and the special counsel to file his response by 6 o’clock this morning. These deadlines were met. Now, just hours later, the three-judge panel has ruled, rejecting Trump’s application for a stay.

As my column relates, the nub of the case is the so-called crime-fraud exception to the attorney–client privilege (ACP).

Corcoran had asserted the ACP to block the special counsel from eliciting testimony and scrutinizing documents pertaining to his communications with Trump.

In June 2022, after consultations with Trump, Corcoran and another Trump lawyer, Christina Bobb, represented to the grand jury and government investigators (including in a sworn statement drafted by Corcoran and signed by Bobb) that Trump had turned over all documents with classified markings that had been in his possession at his Mar-a-Lago estate. This representation was provided in conjunction with a carefully wrapped package containing 38 documents marked classified.

Two months later, based on information developed in the continuing FBI investigation, the government obtained a search warrant from a federal magistrate judge in Florida, who found probable cause that Trump was continuing to retain classified documents and was obstructing the investigation. Based on the warrant, the FBI searched Mar-a-Lago on August 8 and recovered more than 100 additional documents marked classified, many of them in the former president’s private office. Agents also seized thousands of other government records from Trump’s tenure in office — records the National Archives and Records Administration (NARA) had been seeking since Trump left office in January 2021. Under the Presidential Records Act, presidential records are the property of the United States government, not the president who generates them, and NARA is the legal custodian of them.

Clearly, Smith is examining how and why Trump’s lawyers came to claim that all of the documents marked classified had been surrendered to the government notwithstanding that there were scores more at Mar-a-Lago — and likely elsewhere: In November 2022, Trump’s lawyers notified the government that at least a couple of additional documents had been found in a Palm Beach storage facility near Mar-a-Lago. Howell agreed with Smith that the evidence he had proffered established a prima facie case that Trump had schemed to obstruct the investigation. As she further observed, this was enough to trigger the crime-fraud exception to the ACP, allowing the prosecutor to pierce confidentiality; it was not a finding that Smith had proved a crime beyond a reasonable doubt, the higher standard that would be required for a conviction at trial.

As I elaborated on in the column, after the embarrassing revelation early this year that President Biden has also illegally hoarded classified documents, the investigation of Trump was reframed, by investigators and the media-Democrat complex, as an obstruction probe — the better to minimize the mishandling of classified documents and distinguish Trump’s conduct from Biden’s.

Former president Trump could seek an immediate stay of the appellate panel’s ruling from the full D.C. Circuit Court (i.e., all eleven active judges) or from the Supreme Court. It is highly unlikely that either court would grant a stay. Beyond that, Trump’s appeal of the merits of Judge Howell’s order will continue before the D.C. Circuit on the normal, plodding schedule. In the interim, Smith will gain access to the testimony and documents from Corcoran.

If Trump were eventually prosecuted, he would retain the right to contend on appeal that any conviction should be invalidated because his attorney–client privilege was violated. That is one reason why it is so doubtful that the Supreme Court would entertain a stay application at this early stage.