Classified Documents Inquiry: Appeals Court Orders Trump Lawyer to Turn Over Records

by Wall Street Rebel - Michael London | 03/23/2023 9:30 AM
Classified Documents Inquiry: Appeals Court Orders Trump Lawyer to Turn Over Records

An attorney for Donald Trump has been ordered by a federal appeals court to hand over materials to federal prosecutors as part of an inquiry into whether or not the former president kept sensitive information at his residence in Palm Beach.


The F.B.I. searched Mar-a-Lago in August while equipped with a search warrant. The investigation led to the discovery of three secret papers hidden in desks inside Mr. Trump's office, as well as more than one hundred documents hidden in thirteen boxes or containers with classification marks throughout the property. Some of these documents were marked with the highest degree of security possible.

Federal prosecutors filed yet another subpoena almost three weeks after  Donald Trump’s lawyer M. Evan Corcoran, met with investigators in June. This time, the subpoena requested surveillance video from a camera located near a storage room at Mar-a-Lago.

One of the issues that the special counsel, Jack Smith, wants Mr. Corcoran to testify about, according to a person who is acquainted with the case, is a phone call that Mr. Corcoran had with Mr. Trump around the time that the subpoena for the videotape was issued. The office of Mr. Smith would want Mr. Corcoran to testify regarding a number of problems, including this particular one. This is one of the topics that the special counsel wants Mr. Corcoran to testify about.


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On Wednesday, a federal appeals court ruled that an attorney defending former President Donald J. Trump in the investigation into his handling of classified data was required to answer questions before a grand jury and disclose prosecutors documents connected to his legal work. The inquiry centers on Trump's handling of material classified as top secret.

Following Mr. Trump's attempt to prevent the lawyer, M. Evan Corcoran, from giving over what are expected to be hundreds of papers to investigators, the United States Court of Appeals for the District of Columbia issued a finding that marked a victory for the special counsel supervising the probe. The verdict followed Mr. Trump's bid to halt the lawyer.

The struggle behind the scenes gave fresh insight into the attempts that prosecutors are making to gather evidence on whether or not Mr. Trump committed a crime in his defiance of the efforts by the government to regain secret papers that he took with him after he left the White House.

The government had demanded the return of classified material from Mr. Trump's residence, and private club in Florida, Mar-a-Lago, last spring, and the litigation has been taking place behind closed doors or under seal to determine whether prosecutors can compel Mr. Corcoran to provide information on who knew what.

Prosecutors are particularly interested in a memo produced by Mr. Corcoran last spring, in which he claimed (falsely) that a "diligent search" had been undertaken at Mar-a-Lago and that no more classified information remained there. People who know the situation have said prosecutors are interested in learning what Mr. Trump knew about the comments in question.

The issue hinges on the conflicting requirements of the attorney-client privilege, which prevents attorneys from disclosing privileged client communications to the authorities, and the crime-fraud exemption. In cases when the prosecution has probable cause to think that the client has utilized the attorney's advice or services to commit or facilitate a crime, the privilege between the attorney and the client might be waived.

The dispute first surfaced last month when Mr. Corcoran and Mr. Trump claimed attorney-client privilege over records being investigated by the office of special counsel Jack Smith. Mr. Corcoran had invoked the privilege in his first appearance before the grand jury investigating the matter to restrict the breadth of questions he would have to give up.

However, in a petition before Judge Beryl A. Howell of the Federal District Court in Washington, Mr. Smith's office used the crime-fraud exemption to acquire as much information as possible from Mr. Corcoran. Mr. Smith's legal team asked Judge Howell to disregard attorney-client privilege and order Mr. Corcoran to hand over evidence.

Judge Howell announced his judgment on Friday, finding that prosecutors had built a prima facie case that Mr. Trump had broken the law in the case of the paper and that the government had therefore fulfilled the bar for using the crime-fraud exemption.

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.

Tuesday night, while Mr. Corcoran was preparing to follow the judge's order, Mr. Trump's attorneys requested the appeals court to halt the verdict temporarily. At the same time, they argued for a reversal of part or all of the decision. The appeals court temporarily stayed the verdict and set a very tight timeframe for the case, with the government filing a response at 6 a.m. on Wednesday and Mr. Trump filing his papers at midnight.

Although the appeals court ruled against Mr. Corcoran, that judgment still poses a risk to the government's case. Judge Howell's order that Mr. Corcoran provides information to prosecutors was upheld for the time being, but the underlying appeal of the judgment was allowed to proceed.

If the appeals court or the Supreme Court ultimately ruled against the government's arguments regarding the crime-fraud exception, prosecutors would be prohibited from using the information Mr. Corcoran had provided to seek any grand-jury indictment or in any trial.

That might prove mortally destructive at any point in any case, but it depends on the stage. When choosing whether or not to utilize any of the evidence before the merits of the dispute have been completely addressed, the prosecuting attorneys will need to consider this risk and make their decision accordingly.

Even though the case has already been heard in two distinct courts and has resulted in numerous rounds of dueling documents, it is still unclear exactly what crime the government thinks Mr. Trump could have committed or who, other than or in addition to Mr. Trump, might have committed it even though the case has now been heard in two different courts and has resulted in multiple rounds of dueling papers.

Despite this, one of the questions that the Justice Department has been looking into since the beginning of the year is whether or not Mr. Trump or his associates obstructed justice by refusing to comply with repeated demands to return a trove of government materials that he took with him from the White House after he left office. These materials include hundreds of documents with classified markings on them.

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. Before Mr. Smith took over the investigation as a special counsel, the subpoena was issued. This was done after he voluntarily handed over an initial batch of records to the National Archives that included almost 200 classified documents.

In response to the subpoena, Mr. Corcoran complied with the investigators from the federal government by meeting with them in June and handing over an additional batch of papers, of which more than 30 included marks indicating their classified status.

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                       Report: Trump lawyer must turn over evidence, court rules

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