In the latest sign of Donald Trump’s legal vulnerability, special counsel Jack Smith is invoking the so-called “crime-fraud exception” to compel a lawyer for the former president to testify in the Justice Department’s classified documents investigation. According to the New York Times, which first reported the escalation in the DOJ probe, prosecutors are arguing in a motion that Trump lawyer Evan Corcoran is not protected by attorney-client privilege because their discussions may have been conducted to commit or further a crime, and should have to answer grand jury questions he had previously tried to sidestep.
A Trump spokesperson told outlets that the former president and 2024 candidate was the victim of a “targeted, politically motivated witch hunt.” But the move suggests that prosecutors have evidence of wrongdoing by Trump or his associates, and that the special counsel is continuing to take an aggressive approach to his inquiries into the former president. “If they can overcome that privilege and get that testimony before the grand jury, that’s very damaging for the former president,” as national security attorney Bradley Moss told MSNBC’s Alex Wagner Tuesday evening.
Smith, who was appointed by Attorney General Merrick Garland in November, has been overseeing two probes into Trump: One involving the January 6 insurrection, the other involving Trump’s handling of classified materials he took with him to Mar-a-Lago after leaving office in 2021. Last June, Corcoran turned over about 30 documents in response to a DOJ subpoena, and drafted a statement claiming that Trump’s lawyers had found no additional materials after conducting a “diligent search” of his home, Christina Bobb, another Trump lawyer, has reportedly told investigators. That statement, which Bobb signed, was proved false when the FBI searched Mar-a-Lago in August: More than a hundred classified materials were discovered in the raid, which was authorized in part because the DOJ said it had “probable cause to believe that evidence of obstruction.”
Corcoran appeared before a grand jury in January and testified for about four hours, but reportedly invoked attorney-client privilege to avoid answering certain questions about his conversations with Trump. If prosecutors can make the case that those conversations helped further a crime, they could force Corcoran to answer.
It remains to be seen what comes of the case. As Moss said on MSNBC Tuesday, the DOJ does have a “high bar to meet” in erasing Corcoran’s attorney-client privilege claims. And Smith’s investigations remain fraught with challenges, as former Vice President Mike Pence’s reported plans to challenge a subpoena in the insurrection probe have underscored. But the assertive moves by Smith and his team also point to the outstanding legal vulnerabilities that hang over Trump and his so-far listless bid for a second White House term.
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