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Mar 22, 2023
Trump Escalates Fight to Stop His Lawyer From Testifying to the Special Counsel
(Bloomberg) -- A fight over Donald Trump’s bid to stop federal investigators from probing the former president’s communications with his lawyer is moving at a rapid-fire pace through the courts.
A federal appeals court in Washington is considering challenges by Trump and his attorney Evan Corcoran to a ruling that would allow prosecutors in Justice Department Special Counsel Jack Smith’s office to pierce legal protections that shield a lawyer’s work for their client from the government, according to a person familiar with the appeals.
One appeal involves the government’s ability to question Corcoran about his communications with Trump and the second involves prosecutors’ access to material Corcoran prepared related to his representation of Trump, said the person, who asked for anonymity to discuss information that is not public.
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Federal appeals judges in Washington temporarily put the March 17 ruling from US District Judge Beryl Howell on hold as they consider Trump’s request to block them long-term.
In the hours after both appeals were filed Tuesday, the US Court of Appeals for the DC Circuit set an unusually tight schedule, suggesting the judges are inclined to act fast. Once the appeals court rules, the losing side could petition the US Supreme Court to step in.
The DC Circuit panel randomly assigned to the fight features two of President Joe Biden’s nominees to the court, Judges J. Michelle Childs and Florence Pan, and Judge Nina Pillard, who was confirmed under former President Barack Obama. The court didn’t note on the docket when it might issue a decision.
Much about the fight remains under seal and the publicly available DC Circuit dockets are light on identifying details. DC Circuit records do show that two cases were filed appealing a decision by Howell on March 17. The dockets cite the same underlying district court case number and were consolidated before the appeals panel.
The three-judge panel ordered a submission from Trump’s team by midnight Tuesday, directing them to “specify each document” — a sign that at least part of the decision by Howell that’s being challenged involves written material.
The court also ordered the government to respond by 6 a.m. to Trump’s bid to stop Howell’s ruling from being enforced while the appeals are pending, less than 24 hours after the original motions were filed. The appeals and the substance of Howell’s ruling were first reported by CNN.
Corcoran originally testified before a federal grand jury in January in connection with a federal criminal investigation into whether classified information was mishandled after Trump left the White House. The government wanted him to come back to face questions about his communications with with Trump, which normally would be covered by attorney-client privilege.
There’s an exception to that privilege if the government can present evidence that the client may have used their lawyer in order to commit an ongoing or future crime, however. It’s up to the client to decide whether to waive or keep that privilege in the face of the government’s demand for information. If a judge ruled prosecutors had overcome the privilege via what’s known as the crime-fraud exception, it usually would be the client — in this case, Trump — who pursues an appeal.
ABC first reported that Howell found Smith’s office offered compelling evidence that Trump knowingly misled his lawyers about holding on to classified material after he left the White House.
As for the second appeal, the legal doctrine that protects an attorney’s work product from prosecutors is separate from the privilege that covers attorney-client communications. ABC reported that Howell had ordered Corcoran to turn over notes and other records.
A spokesperson for Trump did not immediately return requests for comment. His campaign released a statement on Tuesday that didn’t directly confirm what was going on in the DC Circuit but criticized the release of information about the sealed proceedings as well as the government’s “attack” on lawyers.
A spokesperson for Smith’s office also was not immediately reached for comment.
©2023 Bloomberg L.P.
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