Prosecutors Sent Trump A Special Valentine's Motion To Pierce Attorney-Client Privilege Under The Crime-Fraud Exception

Prosecutors Sent Trump A Special Valentine's Motion To Pierce Attorney-Client Privilege Under The Crime-Fraud Exception
Feb 2023

(Photo by Win McNamee/Getty Images)

Back in September when news broke that lawyer Evan Corcoran had been the one to draft the false attestation that Trump had complied with the subpoena for classified documents, the attorney remained sanguine. Even as Christina Bobb, the younger lawyer whom he persuaded to sign the declaration, hired private counsel, Corcoran insisted that there was no need for him to lawyer up. As the Washington Post reported at the time, Corcoran was "counseled by colleagues to hire a criminal defense lawyer because of his response to the subpoena, people familiar with those conversations said, but so far has insisted that is not necessary."

This turns out to have been a spectacular error in judgment, second only perhaps to agreeing to take on the world's worst client.

On Monday, the New York Times reported that Corcoran had testified in January before the grand jury investigating the government documents, many of them classified, which Trump removed from the White House and refused to return. And on Tuesday, the paper revealed that prosecutors have now filed a sealed motion to compel Corcoran's testimony, asking Chief Judge Beryl Howell to abrogate his claims of attorney-client privilege under the crime-fraud exception.

This follows on reporting by the Times this weekend that Special Counsel Jack Smith is bearing down hard on Trump in an effort to get this investigation wrapped up before the 2024 election season gets going.

The latest article has Bobb speaking to prosecutors at least twice, including an appearance before the grand jury. Bobb is a lawyer, although before being hired by Trump, she was a host at right-wing One America News. She has said that she was not acting as Trump's attorney when she signed the declaration that he'd complied with the subpoena -- which he had not. Trump's attorney Alina Habba has also appeared before the grand jury, the paper reports. Habba does not represent him here, but she did sign a declaration in the New York Attorney General's civil prosecution of the Trump Organization saying that she'd done an exhaustive documents search of the same premises where the FBI later turned up classified materials.

The Times reports that the DOJ is looking hard at Trump's general counsel Boris Epshteyn, the Season Five Michael Cohen-character in the middle of both the January 6 fraudulent electors scheme and the document dispute.

Prosecutors overseeing the documents investigation have also been asking witnesses questions about Boris Epshteyn, who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump, according to multiple people briefed on the matter. It was Mr. Epshteyn who first brought Mr. Corcoran into Mr. Trump's orbit.

At least three lawyers have sat for interviews with the Justice Department during which questions about Mr. Epshteyn were asked -- among them Ms. Bobb and, more recently, Alina Habba, people with knowledge of the matter said. A third lawyer close to Mr. Trump, Jesse Binnall, has also spoken with prosecutors about Mr. Epshteyn, the people said.

It goes without saying that none of this is normal. But the astonishing report that three of Trump's lawyers have appeared as witnesses before the documents grand jury was confirmed by The Guardian, as was Epshteyn's centrality to the inquiry.

Corcoran answered some questions about where at Mar-a-Lago he searched for documents but declined to answer questions about his interactions with Trump and Boris Epshteyn, Trump's in-house counsel, citing attorney-client privilege.


The Times's sources say that Epshteyn, who had his phone seized by the FBI in September, was part of an effort to coordinate "a possible common-interest privilege in the documents case." It's not clear whether this refers to a joint defense arrangement among grand jury witnesses, something Trump used effectively in the Mueller investigation, or an attempt to characterize communications with non-attorney parties as privileged. Could be both!

Meanwhile, over at Truth Social, Trump just posted a 10-page screech about the grand jury investigating his role in the January 6 Capitol Riot. So weird he's not able to get top notch legal representation, huh?

Prosecutors Seek Trump Lawyer's Testimony, Suggesting Evidence of Crime [NYT]
Three Trump lawyers have appeared before grand jury in documents inquiry [Guardian]

Liz Dye lives in Baltimore where she writes about law and politics.

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