News this week that Trump lawyer Evan Corcoran has invoked the attorney-client privilege in an attempt to avoid providing additional testimony in the DOJ investigation of the Mar-a-Lago affair may seem like another potential impediment to the special counsel’s ability to complete that probe. Yet, the DOJ response, moving to compel Corcoran’s testimony based on the “crime fraud exception” to the attorney-client privilege, indicates not only that the end may be getting near, but that the eventual charges will focus, as I previously wrote in Slate, on obstruction of justice.
By invoking the “crime fraud exception,” the DOJ has represented to District Court Judge Beryl Howell that it has clear and convincing evidence that Corcoran, serving as Trump’s lawyer, was involved in conduct that furthered an ongoing crime when he responded to the DOJ and the National Archives’ attempts to retrieve classified documents. An attorney who enables a client’s violations of law loses the ability to conceal the underlying conduct by invoking the attorney-client privilege. Corcoran was at the center of the obstruction activities under question, asserting both before and after the issuance of the Mar-a-Lago subpoena that any of the demanded classified materials had been turned over to the National Archives. Corcoran’s key role included drafting a statement signed by another Trump lawyer, Christina Bobb, that “a diligent search” for classified documents had been made, and all such documents had been turned over. Some two months later, the Mar-a-Lago FBI search yielded more than 100 classified documents.
A ruling from Judge Howell that the crime fraud exception applies would not only further expose Corcoran, but would have a rippling impact on the other Trump attorneys involved in potential obstruction. This includes, of course, Bobb, who signed the “diligent search” false statement. That she apparently added a minimal qualifier to Corcoran’s draft will likely be seen more as an admission that she knew the statement she signed was inaccurate than as a legal shield.
Then there is another Trump attorney, Alina Habba. In connection with New York Attorney General Letitia James’ civil fraud lawsuit against Trump and members of his family, the AG served a subpoena on the defendants for relevant documents. In seeking to justify the failure to produce these documents, Habba submitted an affidavit in which she told the court that on May 5, 2022, she “diligently searched” appropriate quarters at Mar-a-Lago (including areas later searched by the FBI) and found no documents responsive to the subpoena. In her “diligent search,” did she come across any of the hundreds of clearly marked classified documents later discovered by the FBI? CNN reported on Tuesday that Habba had appeared before the classified documents grand jury last month and she was certainly asked about this. The potential list of further questions is long. Habba is already facing a nearly $1 million fine for filing an unrelated lawsuit on the former president’s behalf against a number of his political foes, a lawsuit ultimately dismissed by the court and described by the presiding judge as “a case that never should have been brought,” having been filed “in bad faith and for an improper purpose.” To say that Habba, like Corcoran and Bobb, is extraordinarily exposed as the Mar-a-Lago investigation proceeds would be an understatement.
Moreover, assuming Judge Howell finds that the crime fraud exception applies, that ruling might have impact not just on the lawyers involved in the Mar-a-Lago mess. All of Trump’s lawyers involved in the many election-related schemes also under investigation by the special counsel— from Rudy Giuliani to Sidney Powell, to John Eastman, and on down—face the same prospect of not being able to use their attorney-client relationship with the main target to withhold evidence the government can use against them. The choice then will be to plead guilty and cooperate with the government to reduce potential jail time or try to defend the indefensible in a federal courtroom and face a possibly devastating outcome.
Like Michael Cohen before them, the time for accountability will arrive for the Trump lawyers who spurned their legal and ethical obligations. Having blindly gone wherever their unhinged client directed them to go will have severe consequences that cannot be avoided. If and when Judge Howell issues her expected ruling on the crime fraud exception, it appears that Corcoran, Bobb, and Habba will be the first ones up.
