“Could be killer": Ex-prosecutor predicts Trump lawyer will be forced to spill the beans in court

Trump lawyers will likely be forced to testify against him before the grand jury under the "crime-fraud" exception

Published February 16, 2023 2:36PM (EST)

Former U.S. President Donald Trump and Prosecutor Jack Smith (Photo illustration by Salon/Getty Images)
Former U.S. President Donald Trump and Prosecutor Jack Smith (Photo illustration by Salon/Getty Images)

Legal experts predicted that special counsel Jack Smith's bid to compel Trump attorney Evan Corcoran to testify under the crime-fraud exception — which would allow prosecutors to pierce attorney-client privilege claims — could spell doom for the former president. 

Former U.S. attorney Harry Litman said on MSNBC Wednesday that Trump's lawyers will likely be forced to testify against him before the grand jury.

"We're pretty far down the line" of the investigation, Litman said, predicting that prosecutors' focus is now on Corcoran and fellow Trump attorney Christina Bobb, who signed a document she said was drafted by Corcoran affirming that Trump had turned over all classified materials before the FBI found 100 more classified documents during a search in August. 

"What happened here is they lie about the subpoena, that's flat-out obstruction," Litman said. "They brought Corcoran to a grand jury, and want to know, and there's some evidence that's independent of all of this that maybe there was fraud in the communications between Trump and Corcoran. They say, 'what did Trump tell you?' He says, 'well I refuse to answer because of attorney/client privilege.' Smith says, 'fine, see you in court.'" 

"It's the kind of aggressive move you contrasted with [Robert] Mueller up top, that Mueller wouldn't do," he added. "And it's got Trump, and really Trump alone in the cross hairs."

Legal experts have described Smith's tactics in recent weeks as increasingly "aggressive."

If the judge approves Smith's bid to invoke the crime-fraud exception, Trump's lawyers may be forced to provide damning evidence.

"What we don't know, and it's a potential pristine and killer piece of evidence, 'what did Trump tell you before you signed that document saying we'd done a diligent search and turned everything up?' If the real answer is he wasn't involved, that's one piece of evidence that Smith doesn't have," Litman explained. "If on the other hand, it's, 'he said just tell him this, I don't care,' whether it's true or not, now you have just a terrific piece of evidence that has come from the mouth of the lawyer in front of the jury. That specific piece we don't know one way or the other yet, and it could be killer."

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Former FBI assistant director for counterintelligence Frank Figliuzzi said during the segment that he believes the Justice Department is "nailing it down tight," and that their obstruction case "is solid." He explained that it is not necessary to prove that Trump's lawyers were involved in a crime, but that court language requires proof that their actions were "in furtherance of a crime."

"Again, it's infrequent, requires high levels, and I'm certain if Jack Smith is doing this, he's got somebody talking, more than what we described about the videotape and people moving boxes after the subpoena," Figliuzzi said of the crime-fraud exception. 

"I think people are talking, and I think, you know, the ultimate dilemma for a defense attorney is having to basically give evidence against their client but now it's time for them to decide, 'do I like my career and my bar license, do I like my freedom,'" Figliuzzi explained. "They're really going through things now."

By Samaa Khullar

Samaa Khullar is a former news fellow at Salon with a background in Middle Eastern history and politics. She is a graduate of New York University's Arthur L. Carter Journalism institute and is pursuing investigative reporting.

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