Judge orders Trump lawyer to reveal evidence in “criminal scheme” — and there may be tapes: report

Judge rules Trump duped his own lawyers in Mar-a-Lago case, orders attorney to testify and turn over transcriptions

By Igor Derysh

Managing Editor

Published March 22, 2023 9:02AM (EDT)

Former President Donald Trump speaks to guests gathered for an event at the Adler Theatre on March 13, 2023 in Davenport, Iowa. (Scott Olson/Getty Images)
Former President Donald Trump speaks to guests gathered for an event at the Adler Theatre on March 13, 2023 in Davenport, Iowa. (Scott Olson/Getty Images)

A federal judge on Friday ordered Trump attorney Evan Corcoran to turn over evidence in what she described as an alleged "criminal scheme" after special counsel Jack Smith's team argued that former President Donald Trump "deliberately misled" his own attorneys about classified materials at Mar-a-Lago, according to ABC News.

Prosecutors asked Judge Beryl Howell, the chief judge of the D.C. district court, to pierce Corcoran's claims of attorney-client privilege, invoking the crime-fraud exception, which suggests that prosecutors believe Corcoran's services were used in furtherance of a crime. Corcoran led Trump's negotiations with the Justice Department last summer and drafted an affidavit affirming that Trump had returned all classified materials from Mar-a-Lago in response to a grand jury subpoena before the FBI found 100 more classified documents in an August search.

Howell, who stepped down on Friday, wrote in an order last week that Smith's office had made a "prima facie showing that the former president had committed criminal violations," according to ABC News, and ordered Corcoran to comply with a grand jury subpoena related to six separate lines of inquiry over which he had previously asserted attorney-client privilege.

Howell also ordered Corcoran to turn over records related to what she described as Trump's alleged "criminal scheme," according to the report. The report also revealed that Corcoran may have recorded his discussions with Trump, noting that the records include "handwritten notes, invoices and transcriptions of personal audio recordings."

Former U.S. Attorney Harry Litman said the evidence "could be absolutely dynamite."

"It appears that Corcoran took notes & maybe RECORDED Trump, his client (sense a pattern of mistrust by Trump lawyers?)," Litman tweeted. "If doc or taped evid shows Trump knows the subpoena is false, that is killer."

Former federal prosecutor Andrew Weissmann, who led special counsel Bob Mueller's successful prosecution of former Trump campaign chief Paul Manafort, predicted that the order could be a "gold mine" for proving Trump obstructed the Mar-a-Lago probe in "precisely the same way that Manafort obstructed the DOJ investigation by having his lawyers repeat to the [government] a series of lies."

Howell ruled "identically in both," Weissmann tweeted. "You would think Trump would have learned from the Russia investigation what happened to Manafort when he used his lawyer to try to obstruct a DOJ investigation.  Well, he didn't."

Howell in her order agreed that Smith's prosecutors have shown that Trump appeared to have committed crimes but stressed that prosecutors will need to meet a higher bar of evidence to bring charges or seek a conviction.

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"It is a lower hurdle, but it is an indication that the government had presented some evidence and allegation that they had evidence that met the elements of a crime," Brandon Van Grack, a former top national security official at the Justice Department, told ABC News.

Howell found "sufficient" evidence that Trump "intentionally concealed" the existence of additional classified documents from Corcoran before he drafted a document claiming that a "diligent search" of Mar-a-Lago turned up just 38 classified documents. Prosecutors later discovered evidence that Trump was keeping more documents and the FBI executed a court-authorized search of the premises in August.

Prosecutors have also sought to pierce privilege claims from another Trump attorney, Jennifer Little, who is representing Trump in the Fulton County, Ga. investigation into his efforts to overturn the election in the state. It's unclear why prosecutors targeted Little but Howell ordered her to testify as well, with one exception for a topic she sought to assert attorney-client privilege over.

Trump's attorneys appealed Howell's ruling on Tuesday and an appellate court panel could rule as early as Wednesday morning on the order. Both sides could appeal again after the appeals court rules on the order.

Trump has repeatedly denied wrongdoing in the case.

"Shame on Fake News ABC for broadcasting ILLEGALLY LEAKED false allegations from a Never Trump, now former chief judge, against the Trump legal team," a Trump campaign spokesperson said in a statement to ABC News. "The real story here, that Fake News ABC SHOULD be reporting on, is that prosecutors only attack lawyers when they have no case whatsoever."

But MSNBC legal analyst Glenn Kirschner said the judge's order dealt a big blow to Trump's defense in the case.

"If that reporting is accurate," he said Tuesday, "then a charge against Donald Trump for obstructing justice or making a false official statement... those charges would be legal layups."

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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Related Topics ------------------------------------------

Aggregate Beryl Howell Donald Trump Evan Corcoran Jack Smith Jennifer Little Mar-a-lago Politics