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Yet Another Trump Lawyer Earns Dubious Honor Of Motion To Breach Privilege Under Crime-Fraud Exception

Special Counsel Jack Smith does not play.

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(Photo by PAUL J. RICHARDS/AFP/Getty Images)

Special Counsel Jack Smith is no Merrick Garland. In contrast with recent reporting on months of handwringing inside the DOJ before seeking a warrant to search the former president’s Mar-a-Lago club, the Special Counsel appears to be going hell for leather in an effort to produce indictments in the two pending Donald Trump investigations. And he obviously doesn’t care about the “optics” or performative screeching about a “WITCH HUNT” from Trump and his allies in right-wing media.

The latest evidence of Smith’s aggressive stance comes from ABC News, which scooped that prosecutors are seeking to pierce attorney-client privilege and force Trump’s lawyer Evan Corcoran to testify to the grand jury investigating Donald Trump’s theft of government documents. The network reports the prosecutors have zeroed in on a June 24, 2022 phone call with the former president and seeks to invoke the crime-fraud exception to privilege.

ABC notes that this was the same day the DOJ issued a subpoena for surveillance footage of the storage locker from Trump’s Mar-a-Lago resort where the bulk of the classified documents were discovered when it later came back with a warrant to search the property. And it was just three weeks after Corcoran turned over a Redweld containing 38 classified documents, accompanied by a declaration signed by attorney Christina Bobb that a search had been conducted and no more classified materials remained at the property. This was contradicted on August 8 when the DOJ finally executed that search warrant and found about 100 more classified documents. Whoopsie!

At this same June 3 meeting, Corcoran told Jay Bratt, the head of the DOJ’s counterintelligence division, that the former president kept most of his presidential papers in the locker, but refused to let Bratt examine the contents. Subsequent reporting by the New York Times revealed that Trump’s valet Walt Nauta appeared on the surveillance tapes moving boxes into and out of the storage locker both before and after the DOJ issued a subpoena for all classified materials held by Trump. This reportedly alarmed investigators, nudging them toward seeking a warrant.

Trump has the dubious distinction of having multiple lawyers subpoenaed to appear before on of the two grand juries investigating him under the aegis of the special counsel. In addition to Corcoran, Bobb and his New York attorney Alina Habba have already testified. And ABC is now reporting that that the Justice Department is seeking to pierce privilege with respect to Jennifer Little, who represented Trump in the Fulton County Georgia probe being conducted by District Attorney Fani Willis. Little is apparently being asked to testify to the documents grand jury, not the panel investigating Trump’s role in the Capitol Riot.

CNN broke the news that last week the parties appeared before Chief Judge Beryl Howell on a DOJ motion to compel Corcoran’s testimony. And in February, Judge Howell heard argument on a motion to compel former vice president Mike Pence’s testimony after he defied a subpoena on the theory that he was acting as president of the senate when he refused Trump’s imprecations to do a coup, and is thus shielded by the Speech or Debate clause.

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These guys are clearly trying to string this process along for two years in hopes of running out the clock and having a Republican president kill the entire investigation in 2024. But Jack Smith is going to run through the tape to make sure they don’t get away with it.

Investigators seek to question attorney about phone call with Trump in classified docs probe: Sources [ABC News]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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