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Friday, July 19, 2024 | Back issues
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Trump attorney testifies in classified document probe

Documents are turning around quickly, and more could be coming, after the D.C. Circuit applied the crime-fraud exception against a Trump lawyer.

WASHINGTON (CN) — As a lawyer for former President Donald Trump appeared in front of a grand jury Friday for one of multiple criminal investigations he faces — this one into Trump's handling of classified documents now that he is no longer in office — legal experts watching the sealed process remarked on the speed of the proceedings.

Scott Anderson, a senior fellow with the National Security Law Program at Columbia Law School, pointed to reports that the D.C. Circuit required filings and arguments within a 12- to 24-hour window this week.

“That’s an insanely fast cycle,” Anderson said in a phone interview. “It is really strange.” 

One thing that could indicate, Anderson added, is that investigators believe the testimony extracted from attorney M. Evan Corcoran on Friday could lead to more documents.

Corcoran had to testify after the D.C. Circuit applied the crime-fraud exception to matters that would otherwise be shielded by attorney-client privilege. Though the court's order is sealed, and the proceedings are taking place behind closed doors, the Justice Department has referenced the case involving classified documents as “a pending matter in the Southern District of Florida."

That district is home to Trump's resort home Mar-a-Lago where the National Archives and Records Administration recovered 15 boxes of documents in January 2022, leading to a subpoena in May for any remaining classified documents. Based on evidence that the Trump team intentionally misled investigators about the continued, and unlawful, presence of the top secret documents, the government conducted a raid of Mar-a-Lago in August.

Corcoran in particular assured investigators that no further classified material remained after what he called a “diligent search” at the estate last spring, according to New York Times reporting. Documents turned up at the raid, hundreds of which showed varying levels of classification markings, disproved this claim.

The D.C. Circuit took up and rejected Corcoran's assertion of privilege this week after the lawyer invoked it to dodge multiple questions during his initial February appearance before the grand jury empaneled in Washington. Under the crime-fraud exception, prosecutors can compel testimony from a lawyer whose legal services were used in furthering a crime.

Anderson noted that the ruling requires a lower legal threshold than would be necessary to convince a jury a crime was committed. This is so crimes can be stopped earlier.

“You couldn’t set up a system where you have to wait to convict someone to be able to pierce the veil,” he said.

Robert Sanders, a professor at the University of New Haven and a retired captain with the U.S. Navy Judge Advocate General’s Corps, said it appears Trump’s lawyers have broken a cardinal rule: don’t be a witness.

Sanders said lawyers are allowed to withhold information if they know their client committed a crime with which they are charged. If the attorney is used to facilitate or participate in an ongoing or future crime, however, privilege is broken.

“If the client was trying to actively engage in a lie, which was criminal under these circumstances, then the attorney’s knowledge and active support of that would pull away the attorney-client privilege,” Sanders said in a phone interview.

In a sealed decision earlier this week, a judge who rejected Corcoran's privilege claims noted that Trump might have misled his own attorneys about the classified documents, according to anonymous sources who spoke to ABC News

It is unclear exactly what type of charges are being considered and who exactly prosecutors believe committed a crime. A search warrant affidavit released last August showed that investigators were examining potential violations of multiple crimes, including obstruction and the willful retention of national defense information.

The appeals panel has opened the door for further appeals of its ruling, but did not issue an order barring enforcement of the subpoena for Corcoran’s testimony and records. Therefore, prosecutors can review evidence that the Supreme Court might rule inadmissible.

No appeal appears to have been filed as of Friday morning. Briefs for any appeal would be due in May.

Sanders said protocol in a case such as Trump’s would require a special team of investigators separate from prosecutors to review files and determine what is and is not privileged. That team would then withhold privileged information before sharing documents with the prosecuting team.

The ongoing saga also led federal investigators to find classified documents at the home of President Joe Biden and former Vice President Mike Pence. It does not appear any criminal charges are being considered against Pence or Biden.

For all three individuals, Sanders emphasized that the documents should not have been in their possession in the first place. 

“When I lost my clearance when I retired from the Navy, there was nothing I should have or see because I no longer have a need for these documents,” he said. “You don’t take the stuff home with you.”

Attorneys for Biden and Pence told record-keeping agencies and the FBI to conduct a search for additional documents. What makes Trump's circumstance “exceptionally different,” Sanders said, is that he did not invite a search and falsely asserted that all documents had already been returned.

The FBI served a search warrant in what Sanders called “an extraordinary and unprecedented event that was brought to life by a lack of confidence in the people who said they had given all the documents.”

For Anderson, a key difference between Trump, Biden and Pence is the stonewalling of investigators. 

“The big difference here is the lying and the deliberately keeping it out of the hands of federal investigators,” he said. “That’s really the thing that makes this a much more serious matter. … It would be bad if we knew that [Biden and Pence] deliberately withheld them after being asked by federal investigators.”

The classified documents investigation is one of several criminal probes Trump is facing. In New York, a grand jury appears close to wrapping up a long-running investigation into his presidential campaign's hush-money conspiracy with adult film star Stormy Daniels. Separately, the New York state attorney general has been investigating Trump's liability in connection to inflated business records. Meanwhile an Atlanta-area grand jury is weighing charges over Trump’s effort to overturn Georgia’s 2020 election results.

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