Report reveals special counsel's 8 "secret" court battles as Trump invokes "imagined privileges"

"Trump continues to assert these theories long after they've been batted away by the court," expert says

By Areeba Shah

Staff Writer

Published February 16, 2023 1:47PM (EST)

Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)
Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)

Special counsel Jack Smith is involved in at least eight secret court battles that could reveal details about former President Donald Trump's actions after the 2020 election and his handling of classified material, according to documents reviewed by CNN.

The outcome can impact the law around the presidency, separation of powers and attorney-client confidentiality like it hasn't before, CNN reported. But nearly all of the proceedings remain sealed.

This week, Smith invoked the so-called "crime-fraud exception" to compel Trump's defense attorney Evan Corcoran to testify in the Justice Department's classified documents investigation. 

Prosecutors argue that Corcoran is not protected by attorney-client privilege since the investigation found evidence of conversations that may have furthered or covered up a crime related to the Mar-a-Lago document boxes.

Other subpoenaed witnesses like former Vice President Mike Pence may pose more challenges, raising questions about the protections around the vice presidency, CNN reported.

"I think we are in extraordinary times," Neil Eggleston, a former White House counsel told CNN. "Part of it is I think President Trump continues to assert these theories long after they've been batted away by the court." 

Several cases are still ongoing in court, before D.C. Chief Judge Beryl Howell or in the DC Circuit Court of Appeals. 

Some of the other ongoing cases include an appeal "over whether former Pence chief counsel Greg Jacob and chief of staff Marc Short should have been forced to answer questions about Trump interactions around January 6," CNN reported. 

Both of them testified last July to a federal grand jury investigating the attack on the Capitol and refused to provide answers due to Trump's attempted claims of confidentiality around the presidency. 

However, court orders asked them to testify a second time in October and they both appeared a second time at the grand jury. The Trump team still filed an appeal of Howell's decisions.

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"Trump and allies are asserting real and imagined privileges, making DOJ fight in court for the evidence," wrote former U.S. Attorney Barbara McQuade. "This is why charging a former president takes so long. Just wish DOJ had started these battles sooner. Tick tock." 

After Rep. Scott Perry's, R-Pa., cell phone was seized in August in regards to the Jan. 6 investigation, his lawyers challenged the DOJ's ability to access data taken from the phone, citing protection around Congress under the Constitution's Speech or Debate Clause, according to CNN.

"Howell refused to keep the records from investigators, but an appeals court panel has blocked the DOJ from seeing the records so far, according to indications in the court record," the report said.

The case is set for oral arguments on February 23 at the appeals court in Washington.

Howell also denied former DOJ official Jeffrey Clark's attempt to keep a draft of his autobiography from investigators. The draft included his efforts at the DOJ on behalf of Trump before Jan. 6.

Media organizations like The New York Times and Politico are also trying to persuade Howell to release redacted versions of any sealed court fights related to the grand jury where Trump or others have tried to limit the investigation with claims of executive privilege, arguing there's a "profound national interest" in those legal papers.

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Brief Capitol Riot Donald Trump Jack Smith January 6 Politics