When Jan. 6 investigators sought answers from John Eastman, the Republican lawyer responded with predictable pushback: He argued that he couldn’t testify because his work related to keeping Donald Trump in power after his 2020 defeat was protected by attorney-client privilege.
It was at that point that the political world received a helpful legal primer about the limits of the legal protection: Communications between attorneys and clients are not protected if they’re discussing committing crimes. (Eastman ultimately took the Fifth.)
Today, the same issue is coming to the fore in ways the former president isn’t going to like — not as part of the Jan. 6 investigation, but rather, as part of the other federal criminal investigation he’s facing. The Washington Post reported:
A federal judge has at least partially granted a request from U.S. prosecutors request to force an attorney for Donald Trump to testify before a grand jury about the former president’s possession of classified documents after leaving office, according to two people briefed on the decision.
A CNN report described this as “monumental,” and it’s worth appreciating why.
The lawyer in question is Evan Corcoran, whom special counsel Jack Smith is apparently eager to speak with as part of the ongoing criminal investigation into Trump’s mishandling of classified materials.
At this point, I imagine some readers are asking, “This all seems important, but who’s Evan Corcoran?”
The attorney may not have an especially high national profile, but he’s a highly relevant player in the former president’s documents scandal. Let’s revisit our earlier coverage and review how we arrived at this point.
Last June, Jay Bratt, the chief of the counterespionage section of the national security division of the Justice Department, went to Mar-a-Lago with a few FBI agents in the hopes of retrieving documents the former president improperly took and refused to voluntarily give back.
As part of that meeting, Christina Bobb signed a certification statement, indicating that the former president had fully complied with a grand jury subpoena and no longer had any classified materials at his glorified country club. That statement, we now know, wasn’t true: As the FBI discovered during a search two months later, Trump still had plenty of classified documents at Mar-a-Lago.
In the fall, Bobb decided it was time to pass the buck: NBC News reported in October that the lawyer — who had to hire her own lawyer — told investigators that she did not draft the statement she signed. Rather, Bobb said it was another Trump attorney, Corcoran, who both drafted the statement and told her to sign it.
It was against this backdrop that The New York Times recently reported that Corcoran appeared before the federal grand jury examining the scandal. We still don’t know what he said, but the fact that Smith apparently wants to compel Corcoran to testify suggests (a) there were at least some questions the Trump lawyer didn’t want to answer; (b) Corcoran cited attorney-client privilege; (c) prosecutors believe attorney-client privilege doesn’t apply in this case; and (d) the special counsel’s office has reason to believe a crime was committed.
And that’s why today’s apparent news is such a big deal: Chief U.S. District Judge Beryl A. Howell apparently agreed with prosecutors, at least in part, that this case meets the threshold for the "crime-fraud exception" that overcomes attorney-client privilege because the legal services might've been used in furthering a crime.
It’s worth emphasizing that there are some relevant details that we don’t yet know. The Post’s report, which has not been independently verified by MSNBC or NBC News, added “the scope of what questions Corcoran must answer was not clear.”
But the apparent fact that Corcoran will be ordered to cooperate further suggests the Mar-a-Lago scandal is becoming even more serious.
Expect a certain former president to throw an online tantrum very soon.
This post revises our related earlier coverage.