Politics

Trump Lawyer in Mar-a-Lago Case Must Hand Over Records, Appeals Court Says


A federal appeals court ruled on Wednesday that a lawyer representing former President Donald J. Trump in an inquiry into his handling of classified materials had to return to a grand jury investigating the case to answer its questions and give prosecutors what are likely to be dozens of documents related to his legal work for Mr. Trump.

The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigation for the Justice Department, and came after a lightning round of filings that began on Tuesday evening when Mr. Trump sought an order to stop the lawyer, M. Evan Corcoran, from handing over documents to investigators.

The pitched behind-the-scenes legal fight shed new light on the efforts by prosecutors to assemble evidence about whether Mr. Trump committed a crime in defying the government’s efforts to reclaim the classified materials he took with him after leaving the White House.

It played out into Wednesday as a separate legal proceeding involving Mr. Trump — the Manhattan district attorney’s consideration of whether to seek an indictment of the former president on charges related to a hush-money payment to a porn actress — remained unresolved.

As a legal matter, the litigation — all of which has taken place behind closed doors or under seal — centers on whether prosecutors can force Mr. Corcoran to provide information about who knew what about the continued presence of classified material at Mar-a-Lago, the former president’s residence and private club in Florida, after the government had demanded its return last spring.

In particular, prosecutors have been focused on a document that Mr. Corcoran drafted for another lawyer to give last spring to the Justice Department stating that a “diligent search” had been conducted at Mar-a-Lago and that no further classified material remained there — an assertion that would be proved false. Prosecutors have been seeking to learn what Mr. Trump knew about that statement, according to people briefed on the matter.

The case involves a balancing act between attorney-client privilege, which generally protects lawyers from divulging private communications with their clients to the government, and a special provision of the law known as the crime-fraud exception. That exception allows prosecutors to break through attorney-client privilege when they have reason to believe that legal advice or legal services have been used in furthering a crime, typically by the client.

The spat began last month when the office of the special counsel, Jack Smith, sought to pierce assertions of attorney-client privilege that Mr. Corcoran and Mr. Trump had made in the documents inquiry. In an initial appearance before a grand jury investigating the case, Mr. Corcoran had asserted the privilege as a way to limit the scope of the questions he would have to answer as well as the number of legal records he would have to turn over.

But in seeking to obtain as much information from Mr. Corcoran as it could, Mr. Smith’s office invoked the crime-fraud exception in a filing to Judge Beryl A. Howell, who sits in Federal District Court in Washington. Prosecutors working for Mr. Smith wanted Judge Howell to set the attorney-client privilege aside and compel Mr. Corcoran to give them what they wanted.

On Friday, Judge Howell issued a ruling saying that the government had indeed met the threshold to invoke the crime-fraud exception and that prosecutors had made a preliminary case that Mr. Trump had violated the law in the documents case.


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Judge Howell’s finding that “the government had made a prima facie showing that the former president committed criminal violations” did not mean prosecutors necessarily had enough evidence to charge Mr. Trump. Rather, it was enough to justify setting aside attorney-client privilege and requiring Mr. Corcoran to divulge information about his interactions with Mr. Trump.

As part of her decision, she ordered Mr. Corcoran to turn over most of the legal documents he had tried to withhold and return to the grand jury to more fully answer the prosecutors’ questions. Her order also outlined a half-dozen areas of inquiry that the Justice Department wants Mr. Corcoran to answer questions about.

But on Tuesday night, as Mr. Corcoran began preparing to comply with the judge’s order, lawyers for Mr. Trump asked the appeals court to stay the ruling as they sought to reverse parts or all of her decision. The appeals court granted an initial temporary stay of the ruling and set an unusually aggressive schedule for the case, telling Mr. Trump to file papers by midnight and the government to file a response by 6 a.m. on Wednesday.

The appeals court’s decision concerning Mr. Corcoran left open a lingering threat to the government’s case. While the court allowed Judge Howell’s ruling compelling Mr. Corcoran to provide information to prosecutors to stand for now, it also permitted the underlying appeal of the decision to move forward.

That move opened the possibility that if the appeals court — or the Supreme Court — ultimately ruled that the government’s arguments about the crime-fraud exception were wrong, prosecutors would be barred from using the information Mr. Corcoran had provided as evidence to seek any grand-jury indictment or in any trial.

Depending on the stage of any case, that could prove fatally damaging. Prosecutors will therefore have to weigh that risk in deciding whether to make any use of the evidence before the merits of the dispute are fully resolved.

Even though the case has now passed through two different courts and generated several dueling rounds of papers, it still remains unclear precisely what crime the government believes might have been committed — or who, other than or in addition to Mr. Trump, might have committed it.

Still, among the subjects that the Justice Department has been examining since last year is whether Mr. Trump or his associates obstructed justice by failing to comply with repeated demands to return a trove of government materials he took with him from the White House upon leaving office, including hundreds of documents with classified markings.

In May, before Mr. Smith took over the investigation as a special counsel, federal prosecutors issued a subpoena for any classified documents still in Mr. Trump’s possession — after he voluntarily handed over an initial batch of records to the National Archives that included almost 200 classified documents.



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