On Thursday, Donald Trump lawyer Evan Corcoran was seen entering the Washington, D.C. federal courthouse where grand jury disputes are heard. By all accounts, he was there to take one more swing at Trump’s executive privilege claims, this time as they apply to former Vice President Mike Pence’s testimony in the special counsel’s Jan. 6 investigation.
Corcoran was again seen entering that same courthouse on Friday — but he was expected to wear a very different hat this time, serving as a witness before a grand jury in the special counsel’s Mar-A-Lago records investigation.
While Corcoran has represented Trump since April 2022, when the Justice Department began investigating Trump’s potential records-related violations, he is perhaps best known for drafting a June 3 certification signed by another Trump lawyer stating that all classified documents at Mar-a-Lago had been returned to federal authorities. The FBI’s search last August, which turned up more than 100 additional classified documents, revealed that statement to be blatantly false.
How did Corcoran even find himself in this position, you ask? Corcoran testified to the grand jury in early January, but declined to answer some questions on grounds of attorney-client privilege. So in early February, special counsel Jack Smith asked then-Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia to force Corcoran to testify about those subjects under the “crime-fraud exception,” a legal rule that attorney-client privilege cannot apply when a client uses a lawyer, with or without that lawyer’s knowledge, to further a crime or fraud.
On March 17 — Howell’s last day as chief judge — she not only ordered Corcoran to testify, but also reportedly ruled that Corcoran would have to turn over by Wednesday documents, including “handwritten notes, invoices and transcriptions of personal audio recordings,” reflecting Trump’s likely “criminal scheme.”
Although Trump’s team asked the D.C. Circuit Court of Appeals to stay Howell’s ruling, it refused his request Wednesday after a lightning round of briefing. And therefore, Corcoran is required to produce the documents — in fact, he might already have done so — as well as testify.
That development has led to all sorts of questions from friends, family, colleagues and even near-strangers as I travel with my family this week. For one, yes, it is indeed unusual, if not unheard of, for a lawyer to be litigating against a party one day and then testifying under court-ordered examination by that same party the next one. But putting aside that oddity, folks have asked me another, harder question: After the D.C. Circuit refused Trump’s request for a stay on Wednesday, why didn’t Trump seek immediate Supreme Court intervention to stop Corcoran’s testimony?
Trump and his legal team aren’t saying, but I’ll venture a guess. It’s not solely because he would have lost, as some have speculated, although any rejection by the court would be as embarrassing as it would be legally damaging. After all, Trump has made clear he believes this Supreme Court — controlled by conservative justices, three of whom he appointed — owes him one.
But my hunch is that Trump’s team let Corcoran’s testimony happen because of what’s likely involved in any request to pause, much less, review a crime-fraud-related ruling: the evidence. Put another way, if Trump had petitioned the Supreme Court to stay Corcoran’s testimony and document production, the justices would have seen some, if not all, of what Judge Howell and the three-judge panel on the D.C. Circuit have already reviewed: proof that Trump misled Corcoran and engaged in criminal conduct.
And for someone whose one last hope, if he is ultimately charged or tried by any of the multiple entities now investigating him, is that same Supreme Court, letting the justices see evidence of his alleged crimes now would be a bridge too far. Even if that means Corcoran’s notes and transcripts of “personal audio recordings” are now in the DOJ’s control, even if Corcoran had to return to the grand jury as a witness the day after arguing the application of Trump’s other privileges, Trump can’t afford to lose the Supreme Court yet.