Attorney-client privilege is an important legal principle, which is protected in nearly all instances, but it is not absolute. As the criminal investigation into Donald Trump’s classified documents scandal advances, the former president and his team are discovering that those limits can be highly problematic. The New York Times reported overnight:
A federal appeals court ruled on Wednesday that a lawyer representing former President Donald J. Trump in the investigation into his handling of classified material had to answer a grand jury’s questions and give prosecutors documents related to his legal work. The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigation and followed Mr. Trump’s effort to stop the lawyer, M. Evan Corcoran, from handing over what are likely to be dozens of documents to investigators.
I can appreciate why Corcoran’s name may be unfamiliar to much of the public, especially with so much recent focus on Trump’s unrelated legal dilemma in New York. But Corcoran is quickly becoming one of the most important figures in the former president’s classified documents scandal.
Revisiting our earlier coverage, it was last June when a leading Justice Department official went to Mar-a-Lago with a few FBI agents in the hopes of retrieving documents Trump improperly took and refused to voluntarily give back.
As part of that meeting, one of the Republican’s lawyers, Christina Bobb, signed a certification statement, indicating that the former president had fully complied with a grand jury subpoena and no longer had any classified materials at his glorified country club. That statement, we now know, wasn’t true: As the FBI discovered during a search two months later, Trump still had plenty of classified documents at Mar-a-Lago.
In the fall, Bobb decided it was time to pass the buck: NBC News reported in October that the lawyer — who had to hire her own lawyer — told investigators that she did not draft the statement she signed. Rather, Bobb said it was another Trump attorney, Corcoran, who both drafted the statement and told her to sign it.
It was against this backdrop that the New York Times recently reported that Corcoran appeared before the federal grand jury scrutinizing the controversy. We still don’t know what he said, but the fact that Smith apparently wants to compel Corcoran to testify suggests (a) there were at least some questions the Trump lawyer didn’t want to answer; (b) Corcoran cited attorney-client privilege; (c) prosecutors believed attorney-client privilege didn’t apply in this case because the special counsel’s office had reason to believe a crime had been committed by Trump.
Last week, a federal judge agreed with federal prosecutors and said Corcoran had to cooperate. As we discussed on Friday, this suggested that the case met the threshold for the “crime-fraud exception”: Attorney-client privilege doesn’t apply when legal services might’ve been used in furthering a crime.
Yesterday, an appeals court agreed. A Washington Post report emphasized that Corcoran will not only have to answer questions, he’ll also have to “provide notes, transcripts and other evidence to prosecutors.”
To be sure, there are many elements that remain unclear, and the legal proceedings have unfolded behind closed doors. We don’t know exactly what Corcoran’s evidence says, what he’ll be asked, or what answers he might give. But the fact that four federal judges — a district court judge and a unanimous three-judge appellate panel — have concluded that the lawyer must cooperate with the Justice Department suggests there’s underlying evidence of criminal wrongdoing. It also serves as a timely reminder that Manhattan District Attorney Alvin Bragg’s decision in Trump’s hush money scandal is not necessarily the former president’s most serious legal dilemma. Postscript: Here’s another name to keep an eye on: Jennifer Little. The Wall Street Journal reported late yesterday that the district court judge, Beryl Howell, didn’t just conclude that Corcoran had to cooperate with federal prosecutors, she also ordered Little, another Trump lawyer, to testify as part of the case. As my MSNBC colleague Lisa Rubin noted this week, Little is one of Trump’s lawyers in the Fulton County investigation. Watch this space. This post revises our related earlier coverage.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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