Expert: Trump lawyer's call transcripts in judge's new order may be "enough to send him to prison"

"Those could be very incriminating phone calls by themselves," says law professor Clark Cunningham

By Areeba Shah

Staff Writer

Published March 22, 2023 3:18PM (EDT)

Former U.S. President Donald Trump speaks at a rally for Ohio Republicans at the Dayton International Airport on November 7, 2022 in Vandalia, Ohio. (Drew Angerer/Getty Images)
Former U.S. President Donald Trump speaks at a rally for Ohio Republicans at the Dayton International Airport on November 7, 2022 in Vandalia, Ohio. (Drew Angerer/Getty Images)

A federal judge ordered Donald Trump's lawyer to testify before a grand jury investigating Trump's handling of classified documents after prosecutors found compelling evidence that the former president knowingly and deliberately misled his own attorneys about his retention of classified materials, according to ABC News

Chief D.C. District Judge Beryl Howell wrote last week that prosecutors in special counsel Jack Smith's office had made a "prima facie showing that the former president had committed criminal violations," allowing attorney-client privileges asserted by two of his lawyers to be pierced, sources told ABC News. Trump's team appealed the order but their bid was quickly shot down.

The crime-fraud exception allows for claims of attorney-client privilege to be pierced in cases where it is suspected that legal advice or legal services have been used in furthering a crime. 

"If Chief Judge Howell decided that the crime-fraud exception applied to DOJ questioning former Trump lawyer Evan Corcoran about his communications with Trump, we can assume that she found it was likely that Trump communicated with Corcoran in relation to commission of a crime, and that those communications were related to and in furtherance of the crime," Clark Cunningham, professor of law at Georgia State University, told Salon.

Howell's secret order allows the "crime-fraud exception" to be applied to Corcoran's testimony on a specific set of questions, sources told ABC News. He was ordered to comply with a grand jury subpoena for testimony on six separate lines of inquiry over which he had previously asserted attorney-client privilege.

The crime-fraud exception can be applied "even if the attorney is unaware that they're being used for the implementation of a crime," Cunningham said. "But the client knows. That's the whole point. The attorney-client privilege does not exist to allow people to use lawyers to commit their crimes."

The judge also ordered Corcoran to hand over a number of records in what she described as Trump's alleged "criminal scheme", including handwritten notes, invoices and transcriptions of personal audio recordings, according to ABC News.

Corcoran led Trump's negotiations with the Justice Department last summer and drafted an affidavit affirming that all known sensitive documents had been turned over from Mar-a-Lago in response to a grand jury subpoena. But the FBI found 100 more classified documents in an August search.

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Prosecutors have said they have reason to believe efforts were made to "obstruct" their investigation. 

They want to ask Corcoran about an alleged call he had with Trump on June 24, 2022, around the time investigators were seeking to secure documents at Trump's home and video surveillance tapes of Mar-a-Lago, CBS News reported.

"Those could be very incriminating phone calls by themselves," Cunningham said. "If that material is handed over, that could be by itself enough to indict [Trump], quite possibly enough to send him to prison."

Trump's campaign issued a statement on Tuesday in response to the judge's ruling claiming that prosecutors "only attack lawyers when they have no case whatsoever."

"These leaks are happening because there is no factual or legal basis or substance to any case against President Trump," the statement said.

However, Cunningham disagrees and said that it's "the opposite of a weak case," when a judge has found that the crime-fraud exception has been met.

The former president is facing a number of investigations and lawsuits, including a separate yearslong investigation into his alleged role in making hush money payments to adult film actress Stormy Daniels in Manhattan and an investigation in Fulton County, Ga., into his efforts to overturn his election loss in the state.

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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Donald Trump Evan Corcoran Furthering Jack Smith Mar-a-lago Politics