Trump’s legal team last week appealed a lower court ruling that said attorney, Evan Corcoran, must provide evidence to prosecutors because his legal services may have been used to facilitate a possible crime – obstructing government efforts to recover highly sensitive documents – according to people familiar with the case, who spoke on condition of anonymity to ensure sealed judicial to discuss procedures.
Lawyers for the former president had argued that the sought material was protected by the attorney-client privilege, which in most cases shields all communications between a lawyer and his client. Prosecutors responded — and U.S. District Court Judge Beryl Howell eventually agreed — that the “crime fraud exception” to attorney-client privilege applied in this case, people familiar with the case said.
As part of the Howell ruling, Corcoran was ordered to provide the Justice Department with notes, transcripts of recordings and invoices in his possession, according to a person familiar with the case, who said the judge reviewed that material and concluded that there was evidence that Trump may have misled his own lawyers in the classified documents matter. The details of Howell’s ruling were first reported by ABC News.
People familiar with the case said an appeals panel has already begun reviewing the decision after Trump’s lawyers appealed. A new federal court document shows an appeals panel of three judges will review a decision under an unusually tight timeframe, ordering a party to file their papers by midnight Tuesday, and the other Wednesday at 6 p.m.
The extraordinarily fast timeline suggests that the justices — all nominated by Democratic presidents — intend to rule quickly. The members of the three-judge panel are Florence Pan, a former D.C. Superior Court judge, and J. Michelle Childs, a former South Carolina judge. Both were nominated by President Biden to the federal bench, and Childs was on the president’s shortlist of potential nominees to fill the Supreme Court opening left by the retirement of Justice Stephen Breyer. The third judge on the panel, Cornelia TL Pillard, was nominated by President Barack Obama.
If the panel rules against Trump’s appeal, it’s possible that Trump will try to take the fight to the Supreme Court, though it’s not clear he would have a much better chance of succeeding there.
The battle over Corcoran’s evidence highlights the extent to which prosecutors are trying to collect all available evidence about conversations between Trump and his advisers after they received a subpoena last May to request all documents with secret markings.
In the closed trial over Corcoran’s testimony and evidence, attorneys for Special Counsel Jack Smith, who is leading the Justice Department’s investigation into the documents case, said there is evidence of a deliberate attempt not to turn over all of the material covered by the subpoena, according to people familiar with the case.
After hearing both sides, Howell ruled in favor of the prosecution, suggesting Trump’s legal team may not have been completely honest in their arguments on the matter, according to a person familiar with the case.
The classified documents investigation is one of many criminal investigations targeting Trump. Smith also oversees a Justice Department investigation into Trump’s alleged efforts to block the results of the 2020 election, while a Manhattan grand jury hears evidence of possible falsification of corporate records related to hush money payments, and a grand Atlanta-area jury weighs allegations in an investigation into activity surrounding that state’s 2020 election results.
Ann E. Marimow contributed to this report.