Legal expert: Trump lawyer's habit of dictating notes could come back to bite him at trial

Trump attorney Evan Corcoran may end up a "critical witness" against the former president, legal expert says

By Areeba Shah

Staff Writer

Published June 5, 2023 3:13PM (EDT)

Donald Trump and piles of documents (Photo illustration by Salon/Getty Images)
Donald Trump and piles of documents (Photo illustration by Salon/Getty Images)

Special Counsel Jack Smith's team obtained dozens of pages of dictated notes from Donald Trump's lawyer Evan Corcoran, which may be central to the investigation in the classified documents case, according to legal experts. 

The recordings provided insight into Corcoran's first meeting with the ex-president last year when he advised Trump to comply with the Justice Department subpoena seeking the return of all classified materials in the former president's possession, a person familiar with the matter told The New York Times.

"Corcoran's notes will likely be another critical building block of Jack Smith's case against former President Trump because the notes could ease a core burden for Smith – showing Trump's intent," Temidayo Aganga-Williams, partner at Selendy Gay Elsberg and former senior investigative counsel for the House Jan. 6 committee, told Salon.

The notes also included information on a search that Corcoran conducted last June in response to the subpoena for any relevant records being kept at Mar-a-Lago.

He recounted several Trump aides telling him to search the storage room, located in the basement of the property. They had informed him that all the materials brought from the White House at the end of Trump's presidency were stored there, The Guardian reported

Corcoran ended up handing 38 documents over to Justice Department officials that he found during his search and drafted a letter to the department stating that a diligent search had been conducted and he hadn't found any more documents.

But a few months later, the FBI seized 101 classified documents from Mar-a-Lago, and found the most highly classified documents in the office, where Corcoran wasn't advised to search for material, The Guardian reported. It's unclear who dissuaded Corcoran from searching for classified documents elsewhere at Mar-a-Lago.

"If President Trump gave Corcoran false information about the sought-after documents in order for Corcoran to pass that information to DOJ officials, that would be a crime and Corcoran would be a critical witness against President Trump," Aganga-Williams said.

Corcoran testified that Trump did not mislead him about where to search the documents, but also acknowledged that he did not suggest he look anywhere else, The Times reported earlier this month. 

As Smith's probe into the former president appears to be nearing its end, one of the key aspects of the investigation has focused on who moved boxes into and out of the storage room before Justice Department officials came with FBI agents to collect classified material at Mar-a-Lago.

Prosecutors have recently focused on two employees, who assisted with moving the boxes of documents. Trump's longtime valet, Walt Nauta, was seen on camera moving boxes at Mar-a-Lago both before and after the May subpoena.

Smith's investigators are trying to determine whether Trump or people close to him attempted to obstruct justice in response to the grand jury subpoena requiring the return of classified documents, or if they lied about what happened.

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The special counsel's team is also examining whether there were any efforts to interfere with the government's attempts to obtain security camera footage from Mar-a-Lago, according to the Times.

While it is highly unusual for government investigators to gain insight into a lawyer's confidential interactions with their clients due to protections offered by attorney-client privilege, a federal judge pierced this privilege after prosecutors persuaded her that Trump may have used Corcoran's legal advice in furtherance of a crime, a lawyer briefed on the case told The Guardian.

Judge Beryl Howell ruled in favor of applying the crime-fraud exception, allowing prosecutors to sidestep protections afforded to Trump's lawyer through attorney-client privilege. 

"Prosecutors almost never get direct access to a lawyer's private communications with their client or that lawyer's work product reflecting those communications," Aganga-Williams said. 

He added that Corcoran's notes could provide the special counsel further insight into "Trump's intent to either violate the Espionage Act or to obstruct justice," which would be relevant to the DOJ's decision to charge Trump and could be used as evidence in any criminal trial.

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