The decision by the D.C. Circuit Court of Appeals to uphold the district court’s decision that Trump’s attorney, Evan Corcoran, has to testify under the “crime-fraud exception” to attorney-client privilege is obviously a very bad development for Trump in the Mar-a-Lago document case. But there are three additional developments which indicate the potential full scope of damage to Trump in this case.
1. In addition to testifying before the grand jury, court filings indicate that Mr. Corcoran also has to produce certain handwritten notes and “transcripts of personal audio recordings”(!) So, Trump’s attorney has transcripts of phone calls (or wearing a recording device?) with Trump or others in his orbit about the Mar-a-Lago document searches! Oh boy . . .
2. To the surprise of probably every legal observer, Team Trump decided not to appeal this “crime-fraud” ruling to the Supreme Court - even if only for the long and inherent delay value. As a result, Mr. Corcoran is producing the notes and transcripts, and testifying to the grand jury, now or any day now. That is … weird.
Rachel Maddow’s legal analyst, Lisa Rubin, has a very interesting take on this. She thinks that the lawyer’s handwritten notes and transcripts might be so damaging that Team Trump decided not to show it to the Supreme Court. They know that the underlying documents are so bad that they won’t only lose the appeal, but (more generally) will “lose” the Supreme Court. Team Trump would rather keep the Supreme Court around — unsullied by having viewed this evidence — for other interim appeals, or deal with all this evidence later when it is wrapped up with other appellate issues. But they don’t wan’t the Supreme Court seeing these documents now.
As a decades-long litigator myself, I find this admitted speculation to be compelling. I don’t see other obvious reasons — or prior practice — for Trump not continuing to appeal and draw all this out. Also notable, the D.C. Circuit Court rejected Trump’s appeal on this issue in under two days. That is an unheard of time schedule in these circumstances. All of this strongly suggests that there might be clear cut, really incendiary stuff in there.
3. In addition, before the search and seizure that turned up classified documents, Trump attorney Alina Habba submitted a sworn declaration that “she searched each and every room of [Trump’s] private residence” and “personal office” located at Mar-a-Lago, including, among other things, “all desks, drawers, etc.,” and found no responsive documents. Of course, responsive, “Top Secret” documents were found in the “drawers” of the “desk” in Trump’s “personal office” in Mar-a-Lago. Umm, someone has a lot of explaining to do.
It seems like this Special Prosecutor might have quite the case on his hands.