With much of the attention focused on a possible Manhattan grand jury indictment, special counsel Jack Smith has been aggressively moving forward in his investigation into former President Donald Trump’s possession of classified records.
Last week, then-Chief Judge Beryl Howell reportedly ruled in a sealed order that Trump lawyer Evan Corcoran’s assertion of attorney-client privilege with the former president could be overruled. That means he could be forced to answer questions in front of a grand jury in the nation’s capital about the Mar-a-Lago classified documents saga.
The ruling, reportedly upheld in a sealed ruling by the U.S. Court of Appeals for the District of Columbia Circuit this week, was prompted by efforts from Smith, who was appointed by Attorney General Merrick Garland late last year.
Smith served under Attorney General Eric Holder during the Obama administration, leading the DOJ’s Public Integrity Unit from 2010 to 2015. Smith led a team of 30 prosecutors in conducting public corruption cases throughout the United States, including a mixed track record of going after high-profile politicians. He also inserted the DOJ into what would become the Lois Lerner IRS scandal targeting conservative nonprofit groups during the Obama years.
Howell overruled an appeal by Trump’s lawyers this week of a ruling telling Corcoran “to comply with the district court’s March 17, 2023, order to produce documents.” Further reports this week claimed that Howell had written in a sealed filing that the prosecution had provided sufficient evidence showing that Trump misled his own attorneys, meaning that attorney-client privilege could not apply to certain interactions between Trump and Corcoran.
Corcoran is scheduled to testify on Friday, according to a CNN report.
President Joe Biden is also being investigated by another Garland-appointed special counsel, Robert Hur. Biden’s personal attorneys said they first discovered classified documents in early November 2022 at the Penn Biden Center, located in the nation’s capital. Biden’s lawyers have since found more classified documents at his Wilmington home in Delaware, and the Department of Justice found more when it conducted its own search.
Howell wrote last week that Smith prosecutors had made a “prima facie showing that the former president had committed criminal violations,” according to sources cited by ABC News this week, and that attorney-client privileges invoked by Corcoran and another Trump lawyer, Jennifer Little, could thus be pierced and that Corcoran could be compelled to testify in front of the grand jury.
Howell was replaced as chief judge on Friday by fellow Obama appointee Judge James Boasberg.
Corcoran had reportedly drafted the June 2022 statement that said Trump’s team had conducted a “diligent search” for classified information at Mar-a-Lago. The letter was signed by Trump attorney Christina Bobb, who reportedly added to the letter that the search was diligent “to the best of my knowledge.”
The six areas which Corcoran can now reportedly be forced to testify about include whether Trump knew about the signed certification from the summer of 2022, what steps Corcoran took to ensure there were no other classified documents at Trump’s Florida resort home, who was involved in making Bobb a custodian of Trump’s records after he left the presidency, and what Corcoran and Trump discussed in a phone call on June 24, 2022.
Sources told ABC News that Howell instructed Corcoran to turn over documents related to what the now-former judge allegedly claimed was Trump’s “criminal scheme.” These records “include handwritten notes, invoices, and transcriptions of personal audio recordings.”
The judge reportedly found that Smith’s team provided “sufficient” evidence to indicate that Trump had “intentionally concealed” the existence of more classified documents from Corcoran.
Corcoran reportedly testified in front of the federal grand jury in January 2023, where he cited attorney-client privilege when declining to answer certain questions. Corcoran’s law firm reportedly hired Michael Levy to represent Corcoran in the Smith investigation, according to Reuters in February 2023.
“This is nothing more than a targeted, politically motivated witch hunt against President Trump, concocted to try and prevent the American people from returning him to the White House,” Trump spokesman Steven Cheung said in February. “Just like all the other fake hoaxes thrown at President Trump, this corrupt effort will also fail. The weaponized Department of Injustice has no regard for common decency and key rules that govern the legal system.”
Smith’s prosecutors then successfully “sought approval from a federal judge to invoke what is known as the crime-fraud exception” that month, according to the New York Times, which allowed the DOJ to pierce the attorney-client privilege assertions.
Howell reportedly ruled in a sealed order last week that the DOJ had met the crime-fraud exception related to Corcoran’s testimony.
“Whenever prosecutors target the attorneys, that’s usually a good indication their underlying case is very weak. If they had a real case, they wouldn’t need to play corrupt games with the Constitution,” Trump’s team said last week, adding, “Every American has the right to consult with counsel and have candid discussions.”
Trump returned an initial batch of 15 boxes from Mar-a-Lago to the National Archives in January 2022. However, the National Archives said it had found some records with classified markings and believed Trump continued to possess other records, and in February 2022, it referred the issue to the Justice Department.
Acting Archivist Debra Wall sent a May 2022 letter to Corcoran, informing him that an initial review “identified items marked as classified national security information.”
The National Archives told Trump’s lawyers in early May 2022 that it “will provide the FBI access to the records in question, as requested by the incumbent President [Biden].” Corcoran pointed to “a few bedrock principles” in a letter back to the DOJ, including that “A President Has Absolute Authority To Declassify Documents” and that “Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.”
The National Archives letter in May 2022 was followed the next day by a grand jury subpoena, then by a June 2022 visit to Mar-a-Lago by investigators, and finally by the August 2022 raid. Garland quickly said that he “personally approved” the search.