The Biden Justice Department’s decision to pierce the attorney-client privilege in prosecutors’ pursuit of former President Donald Trump and his retention of classified documents at Mar-a-Lago has given Mr. Trump’s team a path to appeal, legal experts say.
The attorney-client privilege is considered sacred in legal proceedings, but there are a few exceptions where what an individual says to his lawyer may not necessarily be kept confidential. One of them is the crime-fraud exception, usually applied when a lawyer is thought to be involved — or to be counseling a client — in the commission of a crime.
That was the case for Mr. Trump and his attorney, Evan Corcoran.
A federal judge ruled that Mr. Corcoran had to testify in special counsel Jack Smith’s probe into Mr. Trump’s keeping of classified documents at Mar-a-Lago based on the crime-fraud exception.
References to attorney communications surfaced in the indictment against Mr. Trump in which he is facing 37 criminal charges, including 31 alleging that he withheld national defense information. He is also charged with concealing the possession of classified documents and making false statements.
Identified in the indictment only as “Trump Attorney 1,” it says the former president made a “plucking motion” suggesting that the attorney pluck out certain documents that were problematic instead of turning them over to the feds.
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Joe Moreno, a former federal prosecutor and FBI consultant, said it’s very aggressive for the government to use an attorney’s testimony against his or her client.
“I would absolutely go after this if I was on the defense team and try to get whatever I could thrown out because it’s supposed to be very, very narrowly used … otherwise the whole privilege becomes pointless,” Mr. Moreno said. “Clients are supposed to be able to ask their lawyers questions and speak to them freely and not have to worry.”
Peter Carr, a spokesperson for Mr. Smith, declined to comment.
John Yoo, a former deputy assistant attorney general at the Justice Department under President George W. Bush and a law professor at the University of California, Berkeley, said it’s an issue ripe for appeal.
“This is definitely a ground on which Trump will file a motion to exclude evidence — particularly on the obstruction charges — and to appeal,” he said.
Alina Habba, a spokesperson for Mr. Trump’s legal team, said while she isn’t directly involved in his criminal cases — just civil — she believes the district court’s move allowing the attorney-client privilege to be upended will be challenged by his team.
“Piercing attorney-client privilege is a very dangerous predicament to be in and a very dangerous precedent to have,” she said, saying people need to be able to speak openly to attorneys they can trust.
“There is nothing I am concerned about; however, I don’t think that decision was right so I would expect that they would challenge it,” she added.
District Judge Aileen Cannon, a Trump appointee, is overseeing the documents case and has set a trial date for Aug. 14. The case will likely be delayed as the two sides file various motions — and challenges to potential evidence — ahead of trial.
Jared Carter, professor of constitutional law at Vermont Law and Graduate School, said if Judge Cannon were to review the feds’ decision to interrupt the attorney-client privilege, the prosecutors would move to appeal that decision.
“If she rules in favor of Trump, I’m sure the prosecutors will appeal,” he said. “The crime-fraud exception allows for the piercing of the attorney-client privilege. It’s going to be very difficult to get a different outcome because they are in front of a different judge and she’s already been reversed in this context.”
Mr. Corcoran’s testimony isn’t the first time Mr. Trump has been dinged by dealings with his counsel.
His former personal attorney, Michael Cohen, turned on the former president in a plea deal involving tax fraud and hush money payment to adult film actress Stormy Daniels ahead of the 2016 election.
Manhattan District Attorney Alvin Bragg brought a separate 34-felony count indictment against Mr. Trump in April, with the help of Mr. Cohen’s testimony. The indictment alleges that Mr. Trump illegally orchestrated a hush money scheme to keep potential sex scandals out of the press weeks before the election.
In April, Mr. Trump sued Mr. Cohen for more than $500 million, claiming that his former lawyer breached attorney-client privileges.
An attorney for Mr. Cohen called the suit “a form of harassment and intimidation.”
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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