Attorney-Client Exception Said to Trip Up Another Trump Lawyer

The Justice Department has again turned to a seldom-used legal tool in subpoenaing a lawyer representing former President Donald Trump or his associates for otherwise privileged information.

Prosecutors investigating whether classified documents were mishandled at Trump’s Mar-a-Lago estate are attempting to compel testimony from his lawyer, Evan Corcoran, by relying on the “crime-fraud exception” to override attorney-client privilege claims, news outlets reported.

The exception, which a judge can approve when there’s evidence the defendant relied on the lawyer’s advice to advance an ongoing or future crime, is believed to have been used in cases involving four Trump-affiliated lawyers since 2017. DOJ prosecuted three of those matters, while the House Jan. 6 committee used the exception in a fourth.

Trump and his allies have cast this pattern as proof his legal team is the target of a political witch hunt. Yet former department officials say he remains an outlier when it comes to this rarely-used strategy that requires careful vetting under DOJ guidelines.

“Trump has worked with many different attorneys. It’s no secret that he frequently parts ways with his lawyers when they no longer agree on how to move forward,” said Sarah Krissoff, a former prosecutor with the US attorney’s office in the Southern District of New York. “So it is not surprising to me that this has come up in connection with the former president’s relationships with his counsel more than once.”

‘Fairly Aggressive’

Prosecutors sometimes will consider filing a crime-fraud motion with a judge, traditionally in white-collar investigations, former DOJ lawyers say. It comes up when they suspect opposing counsels—unwittingly or not—were used to further misconduct.

But even when it’s viewed as a viable option with an attainable burden of proof—probable cause—to get a judge’s blessing, they usually don’t invoke the exception.

“I certainly thought about it. I never actually invoked it myself,” said Peter Hardy, a Ballard Spahr partner and former federal prosecutor in Philadelphia. “It’s fairly aggressive” and “not done lightly. Certain judges and courts will frown on it.”

Prosecutors often wind up pursuing less intrusive means.

Before Justice Department litigators, including those on a special counsel’s team, use the theory to subpoena a defense attorney, they must get sign-off from the Criminal Division’s top official or—as is more commonly the case—a deputy at the division’s headquarters.

The application gets reviewed by career lawyers at the Criminal Division’s Office of Enforcement Operations, before going up to the deputy assistant attorney general overseeing that office—currently senior career attorney Jennifer Hodge, former DOJ officials said.

Hodge would usually have final approval authority. She puts the application through a six-part evaluation, which includes considering whether efforts to obtain the information via other methods proved unsuccessful, the department’s Justice Manual states.

Sometimes, the government’s filing for a crime-fraud exception never gets unsealed. In other high-profile circumstances, DOJ’s application to override privilege gains publicity, such as in the money-laundering trial stemming from the “Panama Papers” leak and the fraud prosecution of a man who claimed an ownership stake in Meta Platforms Inc.'s Facebook.

Trump Episodes

Last week, Trump spread on social media a link to a conservative website article headlined, “They’re Trying to Torch Attorney-Client Privilege With Trump Again.”

It was a response to a report by the New York Times that DOJ cited the crime-fraud exception in trying to force Corcoran to answer questions before a federal grand jury.

This came to light after Corcoran appeared before the grand jury last month as part of Special Counsel Jack Smith’s probe into Trump’s handling of classified documents, Bloomberg News reported Feb. 10.

In two other instances over the past five years, privilege didn’t hold up for lawyers directly representing Trump. John Eastman emails were accessed by the US House panel investigating the attack on the Capitol, and Michael Cohen’s office was raided by the FBI in 2018. Legal experts cited crime-fraud as DOJ’s presumed tactic with Cohen, although the department didn’t reveal whether it was invoked.

But it was another episode, involving Special Counsel Robert Mueller’s prosecution of Paul Manafort, Trump’s 2016 campaign chairman, that draws the closest parallels to the Mar-a-Lago documents case.

Corcoran reportedly wrote to DOJ claiming all classified material had been turned over, several months before an FBI subpoena uncovered additional classified documents at Trump’s home in August. Manafort’s lawyer was accused of misleading DOJ by minimizing his lobbying in Ukraine.

The Manafort example “is so unbelievably similar to what they’re doing” with Corcoran, said Andrew Weissmann, a lead prosecutor for Mueller’s special counsel’s office. “It’s a written communication to the Department of Justice that contains things the department thought were false.”

The crime-fraud exception was approved by US District Chief Judge Beryl Howell in Washington to compel Manafort’s lawyer to testify. Howell is also presiding over the Mar-a-Lago case, and could soon issue a decision that illustrates another reason crime-fraud is infrequently applied.

“It’s just not that often that there are filings that are blatantly false where you know that information came from the client,” Weissmann said. “It’s unusual because the facts are unusual.”