Opinion Judge Howell delivers another blow to Trump and his lawyer
U.S. District Judge Beryl A. Howell ruled in a sealed opinion that Trump’s attorney Evan Corcoran must not only answer questions regarding his client’s alleged retention of documents and obstruction of investigators but also turn over his notes. The reason for piercing the normally inviolate attorney-client privilege: the crime-fraud exception.
At issue, it seems, is the statement Corcoran prepared attesting that Trump’s legal team had made a “diligent search” of boxes of documents. (A subsequent search conducted pursuant to a warrant turned up hundreds of classified documents Trump had not returned.) Howell held that because there was sufficient evidence that Trump and Corcoran participated in a crime (e.g., violation of the Espionage Act, obstruction of justice), Trump lost the benefit of attorney-client privilege. Put differently, if he and Corcoran, for example, were working to deceive investigators or willfully retain highly sensitive documents, their conversations and any documents in furtherance of such crimes must be disclosed to the grand jury.
Trump’s attorneys squawked that this was a violation of due process. Trump has denied breaking any laws, claiming at one point that he had declassified the documents (although his attorneys have never made that claim in a legal document).
Legal scholars and former prosecutors describe Howell as “a careful and fair-minded jurist,” as constitutional scholar Laurence H. Tribe put it. Before directing him to waive privileges, the judge, in all likelihood, provided Corcoran with an opportunity to appeal, Tribe and several former prosecutors tell me.
Legal scholar Joshua Matz tells me, “Courts do not lightly pierce attorney-client privilege on the basis of the crime-fraud exception, and doing so here signals a judicial understanding that some of the relevant communications likely involved ongoing or future crimes.”
This is not the first time Howell has addressed the crime-fraud exception. Former prosecutor Andrew Weissmann, part of Robert S. Mueller III’s investigative team, tells me that she “has ruled on this exact issue in the [Paul] Manafort case and therefore must know her ruling is rock solid.” Weissmann adds, “I also think it surely means the attorney notes must be exceedingly important evidence.”
In the Manafort case, Howell required a lawyer of the investigation’s targets to testify about false submissions made under the Foreign Agent Registration Act because the submissions were made in furtherance of a crime. The attorney, for example, had to explain the source of the untrue factual representations. Howell also found in the Manafort case that the privilege was waived when the submissions were turned over to the government. (In Trump’s case, the statement likely at issue — attesting a diligent search had been conducted — was likewise submitted to the government.)
Just Security’s Ryan Goodman reminds us that White House attorney Eric Herschmann seemed to warn Corcoran against improperly attempting to tamper with his testimony, an indication that Corcoran’s potential criminal liability might extend beyond the Mar-a-Lago document issue.
Trump attorney Christina Bobb, who signed the statement Corcoran drafted but with the caveat “to the best of my knowledge,” reportedly agreed to cooperate with investigators. It seems that Trump has a habit of ensnaring his attorneys in allegedly illegal activities.
If this seems like deja vu, it’s because another district court judge, David Carter, delivered a similar ruling in a different matter (regarding the Jan. 6 committee subpoena) relating to a different attorney (John Eastman) and a different potential crime (defrauding the United States and obstruction of an official proceeding). There, Carter ruled that Trump and Eastman more likely than not had engaged in criminal conduct, which forfeited attorney-client privilege. Carter also required Eastman turn over certain documents to the House select committee.
How unusual is all this? Twice in the space of a few months two federal court judges found the same client likely engaged in illegal conduct with the assistance of his lawyers. “I have never encountered the invocation of the crime-fraud exception in my roughly two decades of criminal law practice,” says former prosecutor and criminal defense lawyer Renato Mariotti. “So that is pretty unusual!”
Howell’s ruling means she has already seen substantial evidence of Trump’s illegal conduct. Although conviction requires proof beyond a reasonable doubt, Howell’s ruling ensures that Corcoran, a witness with intimate knowledge of Trump’s mind-set and actions, will provide prosecutors with even more ammunition against Trump, unless he invokes the Fifth. In a case with well-established facts, multiple witnesses and clearly applicable federal laws that carry steep penalties, Trump’s own counsel could deliver a fatal legal blow.
Coming on the precipice of a possible New York indictment for a record-keeping violation, Howell’s ruling should underscore that Manhattan District Attorney Alvin Bragg might merely serve as the warm-up act in the Trump legal drama. Yet to come from Mar-a-Lago, Georgia (focusing on the phony elector scheme) and the federal Jan. 6, 2021, investigations are potential indictments for the most serious crimes Trump could face, crimes that go to the heart of his attempted coup and betrayal of his obligations as president.
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