THREAD: What should we make of news that Donald Trump deliberately misled his own attorneys regarding classified documents?
1/ Today ABC News described the evidence that DOJ presented to Judge Beryl Howell that led to her recent ruling that the crime-fraud exception applied to otherwise privileged communications between Trump and his attorneys.
https://twitter.com/KFaulders/status/1638303406698766336?s=20
2/ Specifically, the Judge found that Special Counsel Jack Smith presented compelling preliminary evidence that Trump "knowingly and deliberately misled his own attorneys" about his retention of classified materials after leaving office.
3/ She also found that Smith and his team made a "prima facie showing that the former president had committed criminal violations."
In other words, Judge Howell found that by a preponderance of the evidence (51%, more likely than not), Trump committed crimes.
In other words, Judge Howell found that by a preponderance of the evidence (51%, more likely than not), Trump committed crimes.
4/ That part of the Judge's decision is interesting but not surprising, because her ruling that the communications between Trump and his attorneys were subject to the crime-fraud exception applies that.
What *is* surprising and important is the evidence she ordered produced.
What *is* surprising and important is the evidence she ordered produced.
5/ She ordered that Trump attorney Evan Corcoran should comply with a grand jury subpoena for testimony regarding privileged communications.
She also ordered him to produce handwritten notes, invoices, and transcriptions of personal audio recordings.
That is really important.
She also ordered him to produce handwritten notes, invoices, and transcriptions of personal audio recordings.
That is really important.
6/ This morning, when I recorded the latest episode of the #ItsComplicated podcast with @AshaRangappa_, I said that I presumed that Corcoran kept notes of his conversations with Trump because it's unlikely that the Judge made this ruling based solely on Corcoran's say-so.
7/ But now that is reported by ABC News, not my speculation.
The more important piece of evidence ordered by the Judge is "transcriptions of personal audio recordings." This suggests that Corcoran may have recorded conversations with Trump, his client.
The more important piece of evidence ordered by the Judge is "transcriptions of personal audio recordings." This suggests that Corcoran may have recorded conversations with Trump, his client.
8/ Regardless of who he recorded, the Judge found that those recorded conversations constitute evidence of what she called Trump's "criminal scheme."
That could be extremely powerful and important evidence.
That could be extremely powerful and important evidence.
9/ What is not stated in the ABC News article, but seems fairly obvious to me, is that it appears that Corcoran is being at least somewhat cooperative with DOJ.
To be clear, Corcoran did the right thing by invoking privilege and refusing to disclosed privileged communications.
To be clear, Corcoran did the right thing by invoking privilege and refusing to disclosed privileged communications.
10/ But he did answer at least some of their questions -- the questions that did not strictly fall within attorney-client privilege.
Privilege does not cover the *fact* that notes exist, that recordings exist, or the general subject of a conversation.
Privilege does not cover the *fact* that notes exist, that recordings exist, or the general subject of a conversation.
11/ It looks like Corcoran disclosed all of those things, either directly or indirectly, in response to questions from DOJ.
There have been prior reports that Christina Bobb, who signed a false declaration that was sent to DOJ, said that she acted at Corcoran's direction.
There have been prior reports that Christina Bobb, who signed a false declaration that was sent to DOJ, said that she acted at Corcoran's direction.
12/ Corcoran thus had his own potential criminal liability for obstruction and causing a false statement to be made in the course of a federal investigation.
But it looks like he is being treated as a witness, and his cooperative stance explains why that is.
But it looks like he is being treated as a witness, and his cooperative stance explains why that is.
13/ Now that Judge Howell ruled, in a remarkable ruling, that the crime-fraud exception applies to these conversations and evidence, that frees up Corcoran to reveal his conversations with Trump. That could lead to further piercing of privileged conversations.
14/ In my experience, the crime-fraud exception is often discussed but rarely ever invoked. I can't remember an actual invocation of crime-fraud in my roughly 20 years of criminal law practice.
This is an unusual situation and a very dangerous one for Trump.
This is an unusual situation and a very dangerous one for Trump.
15/ Clients are usually unguarded with their lawyers, with good reason. That's why we have attorney-client privilege.
But when privilege is pierced? That could be a big problem for Trump, especially since those communications appear to be related to obstruction of justice. /end
But when privilege is pierced? That could be a big problem for Trump, especially since those communications appear to be related to obstruction of justice. /end
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