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The Real Trump Development to Be Worried About

The Justice Department’s freewheeling approach to attorney-client privilege poses a threat to the rule of law.

(Photo by MARCO BELLO/AFP via Getty Images)

Concerned the law be applied equally to all? Worried about political witch hunts? You should be, only you're likely worried about the wrong case.

While Trump's indictment saga in New York drags on, it's a magician's trick of misdirection. The real witch hunt and challenge to the rule of law is ongoing in the Mar-a-Lago classified documents case where the government will make one of Trump's own lawyers violate attorney-client privilege and present evidence against his client, Trump, in regards to handling classified documents.


A federal appeals court ruled earlier this month Evan Corcoran, a lawyer for Donald Trump in the investigation of his handling of classified material, had to answer a grand jury’s questions and give prosecutors documents related to his legal work against his will and in violation of attorney-client privilege, which typically makes communications between a lawyer and his client private and out of the reach of prosecutors. The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigation and followed Trump’s effort to stop Corcoran handing over what are likely to be dozens of potentially implicating documents to investigators.

The gist of the matter is that at one point, when asked if there were any additional classified materials at Mar-a-Lago, Trump ordered his lawyers to prepare a statement stating "no," that all classified material had been turned over to the government. Based on Trump's statement to them, the lawyers, including Corcoran, wrote to DOJ that a “diligent search” for classified documents had been conducted at Mar-a-Lago in response to a subpoena.

That claim proved untrue, as FBI agents weeks later searched the home with a warrant and found roughly 100 additional documents with classified markings. The Justice Department now claims Trump lied to his own attorneys in claiming he had no classified documents, and that the former president may have committed the crimes of fraud and obstruction in defying the government’s efforts to reclaim classified materials.

Attorney-client privilege is a legal principle that protects communications between a lawyer and his client from being disclosed to others, including the courts. This privilege is intended to encourage clients to be open and honest with their attorneys, which in turn helps attorneys provide effective legal representation. Any information or communication exchanged between a lawyer and his client is protected from disclosure, as long as it was made in confidence for the purpose of seeking legal advice or representation. This includes not only written and oral communications, but also any documents or materials shared with the attorney. The privilege belongs to the client and not the attorney, meaning that it is the client alone who has the right to assert or waive the privilege.

There's a long history to attorney-client privilege, dating back to the ancient Roman and Greek legal systems. In the 16th century, English courts recognized the concept of legal privilege, which included the privilege of lawyers to refuse to testify against their clients in court. By the 18th century, the concept had expanded to protect all confidential communications between attorneys and their clients.


In the United States, the attorney-client privilege was recognized early on in the development of the legal system. In 1810, the Supreme Court established the American understanding of the privilege in the case of United States v. Burr. The Court held that communications made by a defendant to his attorney for the purpose of obtaining legal advice were privileged and could not be used as evidence against the defendant. Since then, the attorney-client privilege has been recognized and upheld by courts across the United States. It's a big deal: one of the very cornerstones of fairness in our system.

In the Trump case, the Justice Department is using the one major exception to privilege, that the communication is intended to further a criminal or fraudulent act, to compel Corcoran to testify. In other words, Justice asserts Trump lied to Corcoran about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump's lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history rooted in English common law. In the United States, the crime or fraud exception was first recognized in 1840. This exception was later reaffirmed in other landmark cases, such as Clark v. United States (1933) and United States v. Zolin (1989).

There is some risk to the DOJ case: If Corcoran is forced to testify while any further appeals are ongoing, Trump has suggested he will seek a Supreme Court hearing of the matter. That opens the possibility that, if the Supreme Court ultimately rules the government’s arguments about the crime-fraud exception are wrong, prosecutors would be barred from using the information Corcoran provided as evidence to seek a grand jury indictment. That could serve as a basis for overturning the indictment, and make a clear case in the court of public opinion that Trump's rights had been stomped on.

“Prosecutors only attack lawyers when they have no case whatsoever,” according to the Trump campaign. That said, Trump has an uphill battle. DOJ seems to have less to worry about. One of the precedent cases, Clark v. United States, is not encouraging. Clark involved a criminal defendant, Samuel Insull, accused of mail fraud and other crimes related to his business activities. Insull had consulted with his attorney, Frank Clark, and had given him documents and information related to his shady business dealings. During Insull's trial, the government sought to introduce evidence that Insull had given false information to Clark, and argued that the attorney-client privilege did not apply because the communications were made in furtherance of a crime. The trial judge allowed the evidence to be admitted, and Insull was ultimately convicted.

For now, Trump's objections and request for a stay in proceedings have been overruled by the Appeals Court of the District of Columbia. DOJ Special Counsel Jack Smith will obtain key documents from the lawyer for the former president related to the handling of sensitive national security records discovered at Trump’s Florida home last year; it is unknown whether Corcoran will also be required to testify further before the grand jury. Trump's only hope now is to have Corcoran hand over the documents and testify, then seek a hearing before the Supreme Court, and hope that the testimony is rescinded and the government's case falls apart.

If Trump lied to his own attorneys, it is unclear that constituted a prosecutable crime. He has certainly not been charged with that. Things are further complicated by the fact that Trump has not been indicted or charged yet with any crime at all in connection with the documents. Instead a chilling development, as attorney-client privilege had to yield to the grand jury’s desire for Corcoran’s testimony and records. This can have significant legal consequences, as it allows the other party to use the previously confidential information against the client in court. See if you feel that's what is intended by what we are calling, increasingly with quotation marks, "the rule of law."

Editor's note: A previous version of this piece misidentified an 1840 court case as "United States v. Privileged Communications."


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