Appeals Court Agrees That Trump Too Crimey-Fraudy To Assert Privilege Over Lawyer's Testimony
Is it good when multiple judges dropkick your lawyers' attorney-client privilege claims under the cime-fraud exception? Asking for Donald Trump, whose attempt to block his attorney Evan Corcoran from testifying to the grand jury was no more impressive to the DC Circuit than it was to Judge Beryl Howell at US District Court in DC.
As we mentioned yesterday, the former president has been fighting to keep Corcoran from testifying to Special Counsel Jack Smith's grand jury investigating Trump for stealing hundreds of documents, many of them classified, and stashing them in his pool locker at Mar-a-Lago. After the government issued a subpoena for all the classified documents in Trump's possession, Corcoran met with Jay Bratt, the head of the DOJ's counterintelligence division, and handed him a folder that supposedly contained all the classified stuff on the premises. He also drafted an attestation signed by Trump's OAN lawyer Christina Bobb that someone had searched high and low and the place was clean as a whistle.
That was June. In August, the FBI executed a search warrant and found 100 more classified records at Trump's garbage palace. Whoopsie!
Bobb made a beeline for OAN to say that she wasn't acting as Trump's lawyer in the documents case — so no privilege obtained. She also hired herself a lawyer, because she may be an idiot, but she's not crazy.
As for Corcoran, well, the jury's still out. He resisted advice to hire his own counsel, despite having apparently made himself a fact witness in the case against his client. This turned out to be spectacularly ill-judged, since he was promptly subpoenaed to appear before the grand jury, whereupon he asserted attorney-client privilege as to most lines of inquiry. But SC Jack Smith is not AG Merrick Garland, so he marched directly to Judge Beryl Howell's chambers to challenge the privilege claim.
Until last Friday, Judge Howell was chief of the federal court in DC, which put her in charge of these privilege disputes. (She's being replaced by Judge James Boasberg, an Obama appointee, who will probably be no less deferential to the government than Howell was.) On her way out the door on Friday, Judge Howell issued a sealed ruling nixing Corcoran's privilege claim as to six separate lines of inquiry and ordering him to cough up material relating to an alleged "criminal scheme.”
ABC got the deets, and they are not pretty:
Sources added that Howell also ordered Corcoran to hand over a number of records tied to what Howell described as Trump's alleged "criminal scheme," echoing prosecutors. Those records include handwritten notes, invoices, and transcriptions of personal audio recordings.
In reaching the so-called prima facie standard to pierce Corcoran's privilege, Howell agreed prosecutors made a sufficient showing that on its face would appear to show Trump committed crimes. The judge made it clear that prosecutors would still need to meet a higher standard of evidence in order to seek charges against Trump, and more still to prove his guilt beyond a reasonable doubt.
The network reports that Judge Howell suggested that Trump may have lied to his counsel in pursuance of a crime, which destroys the privilege. The court also abrogated the privilege claims of another Trump lawyer, Jennifer Little, although it's not clear whether that was under the crime-fraud exception as well. But lest we forget, Trump's coup-curious dingbat lawyer John Eastman also had to hand over his emails after Judge David Carter ruled that he'd probably done crimes with his client.
Competent lawyers would have gotten their asses over to the DC Circuit Friday night with a motion to stay Judge Howell's ruling pending appeal. As it was, Trump ambled in on Tuesday afternoon. Perhaps if he'd shown a little more alacrity, he'd have drawn a different panel, but in the event he drew Judges Pillard, Childs, and Pan, three Democratic appointees. And while the case was always dumb and a loser, he might have been able to drag it out for a full briefing if he'd gotten some of the dipshits he put on that bench himself. Regardless, the court gave him until midnight to file an emergency brief, and instructed the Justice Department to respond by 6 a.m.
To call that schedule blistering is to liken the Hindenberg explosion to house fire. It's unprecedented, and it indicated pretty clearly that the court was going to rule immediately. Which ... it did. At 3:16 p.m., the panel issued a per curiam order "Dissolving the administrative stay. Denying the motions for stay. Directing the parties to comply with the district court's March 17, 2023, order to produce documents."
In other words, Trump lost. BIGLY. And as of this writing, he hasn't done a goddamn thing about it. Yes, he could theoretically appeal for en banc review to the entire DC Circuit. Or he could ask Chief Justice John Roberts, who hears emergency petitions from the DC Circuit, to do him a solid. But the clock is ticking down fast on that one, and anyway the Court's conservatives are pretty busy dismantling civil rights at the moment and have been disinclined to spend whatever's left of the body's legitimacy bailing out an orange idiot screeching around on a golf cart.
CNN reports that Trump probably won't bother appealing, and that Corcoran is already scheduled to testify Friday.
So, whether or not Trump winds up getting indicted this week, it's still gonna suck a lot for him.
[ABC / CNN / In re Sealed Case, Docket via Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.