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Why Jack Smith going after crime-fraud on Trump attorney privilege matters

Whether deemed an aggressive move or simple common sense, it shows the special counsel isn’t messing around in getting the truth on the record.


I noted Monday that special counsel Jack Smith reportedly putting Donald Trump’s lawyers in front of a grand jury probably wasn’t good news for the former president.  

New reporting since then gives us an even better sense of why that is, with Smith attacking Trump lawyer Evan Corcoran’s attempt to shield his testimony under attorney-client privilege. The special counsel is reportedly using what’s called the crime-fraud exception to argue against the privilege. As the Supreme Court has put it, the exception is used “to assure that the ‘seal of secrecy’ ... between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or crime.” 

Here’s why that latest reporting is significant for both the Mar-a-Lago documents case and the other probe Smith is tasked with overseeing, into the Jan. 6, 2021, attack on the U.S. Capitol.

In the documents case, Corcoran reportedly drafted the June letter signed by Trump lawyer Christina Bobb (whom Smith also reportedly put in front of the grand jury), in which she swore, as Trump's custodian of record, that a diligent search was done for classified materials at Mar-a-Lago. As we know, the subsequent court-ordered search of the Florida resort that yielded a cache of classified documents cast doubt on her statement, which she said she made based on information provided to her. So by zeroing in on Corcoran, Smith is zeroing in on Trump, firming up the extent of Trump’s potential obstruction — a charge that may already be the strongest one against the former president out of all the probes he faces.

That doesn’t mean Corcoran’s testimony is required to bring an obstruction charge against Trump. But even if Smith already thinks he's got the goods for that charge, he needs to determine the precise scope of his evidence. And in the process, he may gain insight into any potential Trump defenses. (Likewise, Team Trump may gain insight into Smith’s theory of the case by learning firsthand the questions he’s asking.)

And Smith’s willingness to fight privilege claims is significant for the Jan. 6 investigation, too. Recall that Trump and former Vice President Mike Pence have both reportedly signaled that they’ll raise executive privilege and “speech or debate” claims, respectively, to block Pence from testifying. While neither argument should keep Pence from having to testify before the grand jury, this latest news on crime-fraud shows that Smith is prepared to fight for the truth in both the probes.