It’s been more than two weeks since the FBI executed its search of former President Donald Trump’s Mar-a-Lago estate. And of all the details revealed about how and where Trump retained classified documents, his team’s negotiations with the National Archives and the FBI, and progress of the Justice Department’s investigation, the one thing I can’t stop thinking about is a statement reportedly drafted by one Trump lawyer, Evan Corcoran, and signed by another, Christina Bobb.
According to a New York Times report published Monday, Bobb and Corcoran met at Mar-a-Lago with Jay Bratt, the head of the counterespionage section of the DOJ’s national security division, and some FBI agents on June 3. At some point during their visit, Bratt and the agents were given “a sheaf of classified material,” the Times reported.
According to the Times:
“Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.”
Trump’s attorneys, of course, have never publicly acknowledged the signed statement, much less shared a copy with the press. In fact, in their lawsuit filed Monday requesting a “special master” to review documents seized by the FBI, they never mention that statement in their recitation of the background “facts.” Instead, they insist that at all times, there was “complete cooperation between President Trump, his team, and the appropriate agencies.”
But given the search warrant receipt — which states 11 sets of classified material were seized on Aug. 8 — the reported June statement to the DOJ, prepared by Corcoran and signed by Bobb, was false. And that’s where some potential trouble begins for them — and for Trump — even in the best-case scenario.
Let’s assume that both Corcoran and Bobb genuinely believed, based on representations from Trump, that there was no additional classified material at Mar-a-Lago beyond that which they provided to law enforcement on June 3. Even so, to the extent that Trump may have known otherwise and deployed his lawyers to misrepresent the whereabouts and/or contents of his records, Bobb and Corcoran could be forced to testify before a grand jury — and potentially against their current client.
What about attorney-client privilege, you’re likely wondering? Well, you remember John Eastman, don’t you? Eastman, the constitutional law professor who advised Trump on how to overturn the election, initially refused to turn over thousands of pages of documents to the House Jan. 6 committee, insisting they were privileged. But a federal judge in California ultimately ruled that even to the extent Eastman had a genuine attorney-client relationship with the Trump campaign, Eastman’s communications with Trump and others were discoverable under the crime-fraud exception. That exception is triggered when a lawyer and his client engage in criminal activity together.
What’s less understood is that the crime-fraud exception also applies where a client uses an unwitting lawyer to further a criminal scheme. And that’s where Melissa Laurenza, who once upon a time represented former Trump campaign chairman Paul Manafort and his business associate Rick Gates, fits in. While investigating the Trump campaign’s connections to Russian efforts to influence the election, then-special counsel Robert Mueller and his team came to believe that Manafort and Gates deliberately misrepresented their lobbying efforts on behalf of a foreign government, and they knew Laurenza filed with the DOJ two “false and misleading” letters on her clients’ behalf. When she refused to testify to a grand jury, citing ethical obligations to her clients, Mueller’s team sought a court order compelling her testimony in order to determine whether her clients intentionally misled the DOJ — and Laurenza herself — about their foreign lobbying work. And Mueller’s team won, forcing Laurenza to testify to a grand jury on limited subjects, but nonetheless, against the interests of her former clients.
Here, a suggestion that Bobb and Corcoran were, like the DOJ itself, victims of Trump’s misstatements could be the most favorable outcome for the two lawyers. And if the FBI or DOJ seeks testimony from Bobb or Corcoran, that would likely come with a collateral consequence: having to withdraw from representing Trump. Laurenza was no longer Manafort and Gates’ lawyer by the time she was compelled to testify. But if she had been, she likely would have had to quit that representation. Basic legal ethics, which have the force of law in many jurisdictions, make plain that a lawyer cannot ethically represent a client in a trial in which they are also a witness. Another Trump-connected case highlights this principle in action. Attorney Robert Costello has long been associated with former Trump adviser Steve Bannon, who was charged with two counts of contempt of Congress for refusing to testify before the Jan. 6 committee. But as Bannon’s trial approached last month, Costello moved to withdraw from Bannon’s trial team, arguing that as the only person who interacted with the Jan. 6 committee on Bannon’s behalf, it might be necessary for him to be called as a trial witness for Bannon. Among the lawyers who stepped in when Costello backed away? None other than Evan Corcoran.
If Corcoran and Bobb testifying before a grand jury and terminating their representation of Trump are the best possible outcomes, what are the worst? Imagine that the written statement Corcoran prepared and Bobb signed was indeed false — and that they knew it when they gave it to the Justice Department. Then they could potentially have criminal exposure of their own under 18 U.S.C. § 1001, which penalizes “knowingly and willfully” making false statements to any branch of the federal government. Trump World knows Section 1001 well. Longtime Trump adviser Roger Stone was convicted under Section 1001 for his false statements to Congress. And before then-Attorney General Bill Barr sought to dismiss all charges against him, former Trump national security adviser Mike Flynn also pled guilty under Section 1001 for false statements to the FBI. But the statute isn’t just about what you say; it also penalizes the creation or use of false written statements where the defendant knows that the statement contains “materially false, fictitious, or fraudulent” information.
Of course, if Bobb or Corcoran are running scared or reconsidering, one would never know. After all, Corcoran is one of three lawyers who filed Trump’s newest lawsuit. Bobb, for her part, retweeted journalist John Solomon’s story Monday about the National Archives’ granting the FBI and DOJ access to the classified material Trump returned in January, accusing the Biden White House of having “facilitated” the DOJ’s criminal probe into Trump’s handling of documents. We also still don’t know exactly what the signed statement says; The Washington Post took pains to note it has not reviewed its “specific wording.” Still, the Post also reported Tuesday that the statement “is of interest to the FBI, which is investigating the veracity of its claims.” And it will remain of interest to me as well. Watch this space.