Trump Lawyer's Grand Jury Testimony Is Another Huge Legal Backfire
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The case involving Trump lawyer Evan Corcoran’s testimony before the Washington D.C. grand jury yesterday, March 24, is nearly two years old. In June of 2021, Corcoran was the lead lawyer responding to the first subpoena served on Donald Trump that sought access to classified documents he was suspected of removing from the White House and taking with him to Mar-a-Lago. Corcoran famously met with Jay Bratt, the head of the Justice Department's counterintelligence division, who showed up at Mar-a-Lago to collect a folder of 31 classified documents. At that time, Corcoran claimed these were the only documents found at Trump’s resort after a “diligent” search of the premises.
In August of 2021, the FBI searched Trump’s resort/hotel/club/residence and turned up nearly 130 more classified documents, as well as 11,000 other non-classified documents that had been stored at Mar-a-Lago, putting a lie to the certification that the original folder was all they had found.
Later that year, Corcoran was subpoenaed to testify before the grand jury about the circumstances of the so-called diligent search: who had conducted the search, under whose orders, what was Corcoran’s specific involvement in the search for the documents, and so forth.
Corcoran appeared before the grand jury in February 2022 and answered some, but not all, of the grand jury’s questions, claiming attorney-client privilege on the rest of them.
The DOJ went to court, filing a motion with the Chief Judge of the D.C. federal courts, Beryl Howell, to compel Corcoran to answer all of the grand jury’s questions. That filing became a year-long case, held entirely in secret before Howell. Finally, last Friday, Howell made her ruling that Corcoran had to testify before the grand jury again. Howell ruled that the crime-fraud exception applied to Corcoran’s claim of attorney-client privilege. Attorneys can be compelled to testify about communications with their clients if those communications involved the commission of a crime or were suspected of covering up a crime. Judge Howell’s ruling found that attorneys for the Office of the Special Counsel had made a "prima facie showing that the former president had committed criminal violations.” According to sources who spoke to ABC News, Special Counsel Jack Smith “believes Trump intentionally and deliberately misled his own attorneys about Trump's retention of classified materials after leaving office.”
Trump immediately appealed Howell’s decision to the D.C. Circuit Court of Appeals. That court ordered written arguments from Corcoran’s attorneys by midnight on Tuesday, and the DOJ response by 6 a.m. on Wednesday. Later that same day, a three-judge panel of the Circuit Court ruled that Corcoran had to answer the grand jury’s questions on Friday.
Trump and his lawyers had all day Thursday to file an appeal with the Supreme Court. They didn’t. Corcoran showed up on Friday morning and testified to the grand jury and apparently answered questions about his communications with Trump about the classified documents stored at Mar-a-Lago, since he could no longer claim attorney-client privilege and refuse to answer.
Why didn’t Trump immediately file an appeal with the Supreme Court on Thursday? After all, three of the six conservative justices on the Supreme Court were “my justices,” as Trump called them. All three had voted to overturn Roe v Wade as he had said he wanted them to do.
Some legal commentators on MSNBC and CNN speculated that Trump had not appealed because he thought he would lose at “his” Supreme Court. But why? Well, there was the lightning-fast unanimous verdict against him by the Circuit Court. That was a definite red flag that the Supreme Court might not look favorably on a Trump appeal.
Lisa Rubin, a legal analyst for The Rachel Maddow Show, came up with another explanation. If Trump had appealed, the Supreme Court “justices would have seen some, if not all, of what Judge Howell and the three-judge panel on the D.C. Circuit have already reviewed: proof that Trump misled Corcoran and engaged in criminal conduct.”
During the case Corcoran filed to avoid testifying, Judge Howell had made him produce notes of his conversations with Trump and transcripts of “personal recordings” which may have been recordings of telephone conversations with his client, Trump. The nine justices on the Supreme Court would have been presented with all the evidence of crimes Corcoran was required to provide Judge Howell and the Second Circuit Court of Appeals.
Trump is looking at six investigations into his potential criminal conduct in two states and the District of Columbia. It’s probable that Trump will try to challenge guilty verdicts that result from prosecution in any of those cases. His appeals will eventually end up in the Supreme Court.
There is a term of law for certain evidence or circumstances which may influence decisions by judges or juries: prejudicial. It applies to evidence which might unduly influence the outcome of a case against a defendant. Trump clearly does not want to “prejudice” the Supreme Court against him by providing the justices with evidence of his criminal behavior before he’s even filed an appeal. All his attempts to prevent his lawyer Evan Corcoran from testifying before the grand jury have thus backfired spectacularly.
Supreme Court judges don’t live in a bubble cut off from the outside world. They can read about the Corcoran case just like you and I do. It’s likely they have already been exposed to prejudicial evidence about Trump in the press.
Trump’s appeals over the classified documents he stole, took to Mar-a-Lago, and hid from the government have lost in the 11th Circuit and the D.C. Circuit Courts of Appeals. He had only one appeal left, and he didn’t even bother going there. Trump may have appointed “his” justices to the Supreme Court all for naught.
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.
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