"Evidence of a crime": Expert says special counsel filing shows Trump lawyer is "hostile witness"

Jack Smith is seeking to invoke the crime-fraud exception to compel Trump attorney's testimony

By Igor Derysh

Managing Editor

Published February 15, 2023 9:01AM (EST)

Former President Donald Trump speaks at a 2024 election campaign event in Columbia, South Carolina, on January 28, 2023.  (LOGAN CYRUS/AFP via Getty Images)
Former President Donald Trump speaks at a 2024 election campaign event in Columbia, South Carolina, on January 28, 2023. (LOGAN CYRUS/AFP via Getty Images)

Special counsel Jack Smith's team is seeking to compel Trump attorney Evan Corcoran to testify under the crime-fraud exception, which allows the prosecutors to pierce attorney-client privilege claims when they have reason to believe that an attorney is helping to further a crime.

Prosecutors have asked a federal judge to grant the crime-fraud exception, according to The New York Times and other outlets, which suggests former President Donald Trump or his allies may have used Corcoran's services to further a crime.

Corcoran handled Trump's discussions with the Justice Department, meeting with investigators in May and turning over 30 documents in response to a subpoena. Another Trump attorney, Christina Bobb, signed a statement affirming that a "diligent search" determined that Trump no longer had any classified documents before the FBI discovered more than 100 additional classified documents during its August search of Mar-a-Lago.

Bobb has told investigators that Corcoran drafted the statement, according to the Times.

Corcoran was recently interviewed before a grand jury in D.C. but is believed to have asserted attorney-client privilege, according to the report. After his appearance, he received a notice that the DOJ would seek to use the crime-fraud exception to pierce the privilege claims. It's unclear what crime the DOJ cited in invoking the crime-fraud exception in its motion to Judge Beryl Howell, who has repeatedly ruled in favor of the DOJ.

"The crime-fraud exception to attorney-client privilege is clear. If the client seeks to use the attorney to commit a crime the privilege is gone," tweeted Richard Painter, a former Republican White House ethics lawyer.

"This is an aggressive move by Jack Smith," wrote former federal prosecutor Renato Mariotti. "It suggests Corcoran is a hostile witness despite his own potential liability for writing a false statement to law enforcement in the Mar-a-Lago matter. It would be significant if DOJ is able to use crime-fraud to compel his testimony."

Former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller's team, added that it is "not unusual" for Smith to argue that communications between Corcoran and Trump are not covered if "Trump were doing it to further a crime," noting that the judge previously ruled in favor of the DOJ on this issue in the Paul Manafort case, which he oversaw.

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Smith's team has increasingly targeted Trump's attorneys and legal advisers. Prosecutors have interviewed Bobb, fellow Trump attorney Alina Habba, and Jesse Binnall — an attorney close to Trump — and asked questions about Boris Ephsteyn, a longtime Trump adviser who has coordinated lawyers in multiple investigations targeting the former president. Ephsteyn connected Corcoran with Trump, according to the report.

Investigators have asked witnesses about discussions between Ephsteyn and others about establishing a "possible common-interest privilege" in the case, which creates a kind of umbrella privilege for lawyers and clients to communicate confidentially, according to the Times. Investigators are interested in whether Ephsteyn was "trying to improperly influence witness testimony."

A Trump spokesman told CNN that Smith's latest move was "nothing more than a targeted, politically motivated witch hunt against President Trump, concocted to try and prevent the American people from returning him to the White House."

But some legal experts have long expected that the DOJ would target Trump's attorneys.

Trump is a "walking, talking crime-fraud exception," conservative attorney and Trump critic George Conway wrote in a resurfaced tweet in October. "He has ZERO attorney-client privilege on ANY of this.  His lawyers are going to be the witnesses who put him in jail."

Conway added on Tuesday, "this tweet seems to be aging well."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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Aggregate Donald Trump Evan Corcoran Jack Smith Politics