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Trump appeals order forcing his lawyer to give evidence on classified documents

March 22, 2023 Updated Wed., March 22, 2023 at 6:49 p.m.

By Josh Dawsey,Devlin Barrett and Jacqueline Alemany Washington Post

A federal appeals court is weighing whether a lawyer for Donald Trump has to provide testimony, notes and other evidence to prosecutors investigating how classified documents remained at the former president’s Mar-a-Lago home months after a subpoena to return all sensitive files, according to court records and people familiar with the matter.

Trump’s legal team has appealed last week’s ruling by a lower-court judge who said the lawyer, Evan Corcoran, must provide evidence to prosecutors because his legal services may have been used to facilitate a possible crime – obstruction of government attempts to recover highly sensitive documents – according to people familiar with the matter, who spoke on the condition of anonymity to discuss sealed court proceedings.

Lawyers for the former president had argued that the material being sought was protected by attorney-client privilege, which in most instances shields any communications between a lawyer and a client. Prosecutors responded – and U.S. District Judge Beryl Howell ultimately agreed – that the “crime-fraud exception” to attorney-client privilege applied in this case, the people familiar with the matter said.

As part of Howell’s ruling, Corcoran was ordered to give the Justice Department notes, transcripts of recordings, and invoices in his possession, according to a person familiar with the matter, who said the judge has reviewed that material and concluded there was evidence suggesting Trump may have misled his own attorneys in the classified-documents matter. The details of Howell’s ruling were first reported by ABC News.

People familiar with the matter said an appeals panel has already begun reviewing the decision, after Trump’s lawyers appealed. A new federal court docket entry shows that a three-judge appeals panel is working on an unusually short schedule – one side in the case had to file its papers by midnight Tuesday, and the other by 6 a.m. Wednesday.

The extraordinarily quick timeline suggests that the judges – all nominated by Democratic presidents – intend to rule swiftly. On the panel are Florence Pan, a former D.C. Superior Court judge, and J. Michelle Childs, a former South Carolina judge. Both were nominated by President Biden to the federal bench, and Childs was on the president’s shortlist of potential nominees to fill the Supreme Court opening created by the retirement of Justice Stephen G. Breyer. The third judge on the panel, Cornelia T.L. Pillard, was nominated by President Barack Obama.

If the panel rules against Trump’s appeal, it’s possible the former president will seek to carry the fight up to the Supreme Court, though it’s not clear he would have a much better chance of success there.

The fight for Corcoran’s information highlights the degree to which prosecutors are trying to gather all of the available evidence about conversations among Trump and his advisers after they received a subpoena in May of last year seeking all documents with classified markings.

In the closed-court arguments over Corcoran’s testimony and evidence, lawyers for special counsel Jack Smith, who is leading the Justice Department investigation in the documents case, said there is evidence of a deliberate effort not to turn over all the material covered by the subpoena, according to people familiar with the matter.

After hearing from both sides, Howell ruled in favor of the prosecution and suggested that Trump’s legal team may not have been completely honest in its arguments about the issue, according to one person familiar with the matter.

The classified-documents investigation is one of several criminal probes focused on Trump. Smith is also overseeing a Justice Department examination of Trump’s alleged efforts to block the results of the 2020 election, while a Manhattan grand jury is hearing evidence of possible falsification of business records concerning hush-money payments, and an Atlanta-area grand jury is weighing charges in a probe of activity around that state’s 2020 election results.

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