The big news from Tuesday was that Donald Trump was not arrested. Contrary to his prediction over the weekend, The Former Guy has not been indicted, did not do a perp walk, and there is still no indication from anyone other than Trump himself that any such action is imminent. Despite his current freedom, however, Trump’s legal woes are mounting and he did get some really bad news.
ABC News reports on a new development in the classified documents case, one of the more serious allegations against Donald Trump. In a sealed filing, a federal judge ordered that Evan Corcoran, an attorney for Trump, must comply with a grand jury subpoena despite his attempt to claim attorney-client privilege. The material that Corcoran was required to turn over reportedly included handwritten notes, invoices, and transcriptions of personal audio recordings.
It is extremely rare for a judge to order a breach of attorney-client privilege, but there are grounds for doing so. One of the most commonly used is the crime-fraud exception, which holds that discussions that involve plans to commit a crime or fraud are not protected by attorney-client privilege. This seems to be where Trump ran into trouble.
In the filing, the judge wrote that she found "sufficient" evidence that Trump "intentionally concealed" the existence of additional classified documents from his attorneys. Trump’s dishonesty led his lawyers to unwittingly deceive the government when they certified to the DOJ in June 2022 that no additional classified material had been found at Mar-a-Lago after a “diligent search.” This certification was proven false after the FBI searched Trump’s resort home in August.
Unsurprisingly, Team Trump appealed this order. CNN picks up the story there and details how a three-judge panel in the federal appeals court issued a temporary stay. Trump’s lawyers were required to file a brief by midnight Tuesday and the DOJ was given until 6:00 a.m. to respond. Both sides apparently met their deadlines, but at press time no decision has been handed down.
This story is still in process as we await the panel’s decision, but I am a lot more interested in these developments than I am in Alvin Bragg’s New York case. The documents case is now being overseen by special counsel Jack Smith and we now know that Smith and his team have found evidence of criminal obstruction. While the New York case seems to be a legal stretch, the documents case is a serious threat to Trump.
The judges seem to be taking the case very seriously as well. The initial order to breach attorney-client privilege was a major move, especially given the sensitive nature of cases involving a former president. In fact, such a move is probably unprecedented when it comes to legal cases involving former presidents. The short deadlines set by the three-judge panel also indicate that the judges are in no mood for foolishness or dilly-dallying. A frequent Trump legal strategy has been to delay as long as possible, but that doesn’t seem likely here.
As I’ve said for a long time, Trump’s jeopardy isn’t merely based on the fact that he had secreted away government documents and property at Mar-a-Lago. As we’ve seen, control of documents and classified information seems to be a weak link for many elected officials. What separates Trump from the Bidens and Pences with classified documents in their garages and attics is the fact that Biden and Pence did the right thing and called in the FBI when the material was found. Trump stonewalled the government for months. The difference between Trump and Pence and Biden is obstruction and the intent to deceive.
If Trump’s attorney-client privilege shield is pierced, there will be major implications that extend beyond the documents case. Smith is currently dealing with at least eight Trump cases that include the inquiries into the January 6 attack and Trump’s attempt to steal the election in addition to the classified documents investigation.
It’s important to note here that, as far as we know now, Corcoran is the only Trump lawyer who has been instructed to turn over his materials to the grand jury. We can speculate, however, that if the strategy works, he won’t be last. It is very possible that a great number of Trump’s lawyers may have been party to Trump’s criminal conspiracies. The question is what prosecutors can prove.
If Trump’s attorneys are required to turn over their notes and testify before grand juries, it provides an opportunity for investigators to probe deeper and pull threads of suspicious activity that can lead deeper into Trump’s organization. This also sets a potential perjury trap for the day when Donald Trump is finally called to testify under oath. If The Donald’s claims don’t match the records and testimony that his lawyers provide, he can be charged with lying under oath. On the other hand, if Trump tells the truth, he might incriminate himself.
One answer would be to invoke the Fifth Amendment right against self-incrimination. In fact, Trump did do this last year in a civil fraud case involving his businesses. Video of The Former Guy’s testimony shows that he took the Fifth Amendment route more than 400 times. But for a politician, invoking the Fifth can lead voters to believe that there is definitely something to hide.
With or without Trump’s testimony, the investigations will go on. And if Trump’s trusted legal confidantes are forced to present evidence against their boss, the government investigators will gain invaluable insight into what Trump was doing and saying as his lawyers launched myriad legal challenges into election results, as the insurrectionists stormed the Capitol, and as the National Archives tried to arrange for the return of the boxes of classified documents that they knew were at Mar-a-Lago.
Those attorney notes and records comprise evidence of Trump’s actions, words, and state of mind. They may be used to link him directly to crimes that include but are not limited to fraud, inciting a riot, conspiracy to obstruct a federal proceeding, and possibly even seditious conspiracy.
Part of Trump’s success in avoiding indictment and prosecution so far is in his strategy of insulating himself from illicit behavior. Like a mob boss, Trump seems to have had underlings do his dirty work. At least some of these underlings, like Michael Cohen, were attorneys, which allowed Trump to wrap his dealings with them in the attorney-client privilege. If that protection goes away, there is no telling what investigators will find.
If I were Donald Trump, I’d be hoping that Alvin Bragg was the one bringing the looming indictment. Bragg’s case is thin and will probably be easy to beat. Jack Smith’s indictments are going to be much tougher.
I do think indictments are coming, but I don’t think that it will be this week. Jack Smith is still pulling the threads of illegal actions to find out where they lead.
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