In another clear sign that special counsel Jack Smith thinks Donald Trump may have committed actual crimes, federal prosecutors are trying to force one of Trump’s many lawyers to answer questions he has previously refused to answer, invoking attorney-client privilege. The attorney in question is M. Evan Corcoran and the subject is Trump’s Mar-a-Lago classified documents hoard.
The way around attorney-client privilege is called the crime-fraud exception, and it’s used when prosecutors believe “that the legal advice was used in furtherance of an illegal or fraudulent activity,” the American Bar Association explains. So if prosecutors want to get past attorney-client privilege in asking Corcoran questions about Trump not turning over classified documents when told to do so, it suggests that they believe that Corcoran’s legal advice to Trump on that matter was used in furthering a crime. That doesn’t mean Corcoran necessarily participated. Trump might have taken advice offered in good faith and used it in continued criming. But if prosecutors are asking a judge to break through attorney-client privilege using the crime-fraud exception, it’s a good bet they think there was a crime.
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Corcoran was the attorney who turned over 30 classified documents to the FBI in June and then reportedly drafted the statement claiming that a “diligent search” of Mar-a-Lago had been conducted and that no more classified documents had been found. Christina Bobb, another of Trump’s lawyers, signed that statement, but she has reportedly insisted that Corcoran drafted it and that she worked to add caveats. Weeks later, the FBI searched Mar-a-Lago and found more than 100 classified documents, many of which definitely would have been found if anything approaching a “diligent search” had been conducted.
The special counsel’s office isn’t making public exactly what questions it wants to ask Corcoran, but given that history, it’s a safe bet the questions center around Trump’s obstruction of efforts to get back the classified documents.
Prosecutors in the special counsel’s investigation have to convince Judge Beryl Howell that the crime-fraud exception applies. A critical part of that involves having evidence that, at the time Corcoran advised Trump on the matter, Trump wasn’t done committing crimes or fraud. According to a 1989 Supreme Court decision:
The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection–the centrality of open client and attorney communication to the proper functioning of our adversary system of justice–ceases to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the “seal of secrecy” between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.
But given that every day Trump didn’t return the documents, he was defying a subpoena and holding onto and improperly storing classified material the government was actively seeking from him, the “future wrongdoing” part should not be difficult to show. Howell, The New York Times notes, “has consistently decided in the government’s favor on privilege issues surrounding Mr. Trump.”
In addition to the classified documents at Mar-a-Lago, the special counsel is investigating Trump’s efforts to overturn the 2020 elections. Mike Pence is preparing to fight a subpoena calling on him to testify about his conversations with Trump relating to that. Trump’s legal jeopardy appears real, and while there’s no chance of actual justice—in the sense of any kind of a fair outcome in which Trump gets what he deserves—there remains at least some hope of him facing some kind of consequences.
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