Another Prosecutor Is Apparently Racing Toward a Trump Indictment

Dennis Aftergut / Slate
Another Prosecutor Is Apparently Racing Toward a Trump Indictment Documents seized during the Aug. 8 search by the FBI of former president Donald Trump's Mar-a-Lago estate in Florida. (photo: AP)

On Wednesday, with unusual speed, the U.S. Court of Appeals for the D.C. Circuit swatted down an attempt by former President Donald Trump to block a lower court order that his lawyer, Evan Corcoran, immediately turn over documents subpoenaed by Special Counsel Jack Smith’s grand jury. Trump could appeal to the Supreme Court, but that wouldn’t go anywhere either, and it appears he has already opted against it.

Smith is investigating Trump’s potential national security law violations and obstruction of justice surrounding classified documents that Trump improperly kept at Mar-a-Lago, rather than comply with a May 2022 grand jury subpoena compelling their return.

The documents Corcoran was ordered to disclose Wednesday apparently included attorney notes of conversation between Corcoran and Trump, as well as audio files. Reports suggest that in June 2022, Trump instructed Corcoran to arrange to give the Justice Department a sworn affidavit falsely representing that no further classified documents responsive to the May 2022 subpoena remained at Mar-a-Lago.

Two months later, in August, a court-authorized search of Mar-a-Lago established the affidavit’s falsity. The FBI found more than 100 classified documents at Trump’s country club home.

Few, if any, appellate rulings have ever come more swiftly than Wednesday’s. It was only on Friday that district court Judge Beryl Howell ordered Corcoran to hand over his notes and documents.

In closed-door hearings before Judge Howell, Smith had evidently provided enough evidence to convince her that Corcoran’s communications with Trump, and his notes of them, involved planning or concealing a crime. That allowed her to invoke the “crime-fraud” exception to cut through the ordinarily unyielding confidentiality of attorney-client communications.

Here are five things that the rapid-fire appellate order brings into focus.

1. Courts are losing patience with Trump.

Judges have watched Trump’s dilatory litigation tactics for years. They know the clock is ticking on Special Counsel Smith’s investigations if he is to complete them before 2024’s political season.

And so, the appellate court sent a signal Wednesday: “Time’s up on legally unsound delaying tactics in this jurisdiction.”

There’s meaning here for what’s coming down the pike. If Trump is indicted in this case or others, expect him to file flurries of meritless motions aimed primarily at delay. The judges deciding such matters may have Wednesday’s judicial impatience with the same defendant in their memory banks.

In the coming cases against Trump, the likelihood just increased for keeping justice from being denied by being needlessly delayed.

2. The evidence ordered to be disclosed may contain a smoking gun.

Like Judge Howell, the appellate judges who issued Wednesday’s decision reviewed Corcoran’s documents and know their contents. If the evidence in them was unusually inculpatory, it may well have added to the court’s urgency to get the materials to the Justice Department. That can’t be comforting to the target of the investigation or the lawyers planning to defend him.

3. Jack Smith has changed the game.

Federal prosecutors’ attempts to pierce attorney-client communications are exceedingly rare. But it’s not just that Smith is willing to be aggressive. It’s that he is smartly aggressive. He picks the battles he can win and that can help him build an overwhelming case. He’s on a path to do just that.

4. Corcoran’s troubles are Trump’s troubles.

Although two courts have now found that Corcoran was in on discussions that involved the planning or concealing of a crime, we don’t know whether he was an unwitting participant to whom Trump lied or a willing collaborator. Either way, the discussions in his presence eliminated his obligation to keep his client’s communication confidential when subpoenaed by Smith to answer a grand jury’s questions.

To date, however, it appears that Corcoran’s gone to the mat for Trump and bypassed offramps to cooperation. Prosecutors notice such things and draw inferences about innocence or guilt.

If Corcoran was innocently involved, he’s unlikely to want to take the fall for his client. If he became part of a scheme, he could invoke his 5th Amendment rights, but Smith could then grant him immunity and compel him to testify. Either way, Smith is getting the documents.

Corcoran’s options are narrowing. That isn’t good news for him, or his client.

5. Trump’s legal headaches are now code red.

Grand jury investigations in Manhattan and in Fulton County, Georgia, appear to be heading toward Trump indictments. Meanwhile, in Smith’s Mar-a-Lago investigation, a lightning-speed court order that Trump’s lawyer divulge his notes or audio to a smart, well-resourced prosecutor like Smith is cause for a throbbing migraine.

Evan Corcoran is scheduled to appear before Smith’s grand jury on Friday. If he testifies fully against Trump, what already looks like a powerful case could become overwhelming.

Spring temperatures are rising at Mar-a-Lago. A former president is sure to be feeling the heat.

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