By Maggie Haberman, Alan Feuer and Ben Protess
The two indictments filed so far against former President Donald Trump — one brought by the Manhattan district attorney, the other by a Justice Department special counsel — charge him with very different crimes but have something in common: Both were based, at least in part, on the words of his own lawyers.
In the 49-page federal indictment accusing him of retaining classified documents after leaving the White House and scheming to block government efforts to retrieve them, some of the most potentially damning evidence came from notes made by one of those lawyers, M. Evan Corcoran.
Corcoran’s notes, first recorded into an iPhone and then transcribed on paper, essentially gave prosecutors a road map to building their case. Trump, according to the indictment, pressured Corcoran to thwart investigators from reclaiming reams of classified material and even suggested to him that it might be better to lie to investigators and withhold the documents altogether.
Earlier this year, over Trump’s objections, the special counsel overseeing the investigation, Jack Smith, obtained the notes through an invocation of the crime-fraud exception. That exception is a provision of the law that allows prosecutors to work around the normal protections of attorney-client privilege if they have reason to believe and can demonstrate to a judge that a client used legal advice to further a crime.
The ruling agreeing to the Justice Department’s request by Judge Beryl A. Howell, then the chief judge of the U.S. District Court in Washington, was crucial to the shape and outcome of the investigation.
Trump’s legal fate could now hinge on testimony and evidence from two men he paid to defend him: Corcoran, who is still a member of his legal team, and Michael Cohen, a former lawyer for Trump who has helped prosecutors in New York with their case related to the former president’s payment of hush money to a porn star before the 2016 election. Cohen pleaded guilty to federal charges, including one related to a campaign finance violation, in 2018. Corcoran has not been accused of any wrongdoing.
Their complicated involvement in the two cases reflects the perils of the former president’s long habit of viewing lawyers as attack dogs or even political bosses rather than as advocates bound by ethical rules.
Now in his late 70s, Trump is still searching for lawyers in the mold of the one who first mentored, protected and, in his words, “brutalized” for him: the ruthless and ultimately disbarred Roy M. Cohn.
Trump is due to appear in federal court in Miami today.
When the indictment of Trump was unsealed Friday, it became abruptly clear that the notes by Corcoran — identified as “Trump Attorney 1” — were far more extensive, and far more damaging, than previously known.
“What happens if we just don’t respond at all or don’t play ball with them?” Corcoran quotes Trump as saying at one point, referring to government officials seeking to enforce a subpoena demanding the return of the documents.
The notes referred to in the indictment underscore the extent to which the charges were built on evidence from his inner circle. Along with Corcoran’s notes, prosecutors drew upon text messages from a number of his employees and a recording made of him by an aide. Prosecutors seized phones and subpoenaed documents from a wide group of his advisers.
Trump has long complained about lawyers or other advisers taking notes in front of him. But The New York Times had reported that Corcoran’s notes were copious, dictated into the Voice Memos app on his iPhone after a meeting with Trump about the subpoena issued in May 2022 demanding the return of any classified documents he still had at Mar-a-Lago.
In her memorandum of law explaining her ruling that Corcoran needed to provide testimony in the documents investigation, Howell wrote that prosecutors had presented compelling evidence that Corcoran was misled by his client, who left the lawyer with a “blinkered” view about where remaining boxes of documents were stored.
In one of the most damning passages of the notes, Corcoran describes how Trump made a “plucking motion” after he had placed about 40 secret documents in a folder in preparation for handing them over to federal prosecutors in compliance with a subpoena that had demanded the return of all classified documents in Trump’s possession.
In his notes, Corcoran said the gesture made him think that Trump was suggesting that he should take the folder to his “hotel room and if there’s anything really bad in there, like, you know, pluck it out.”
In another revealing exchange about what Trump hoped to communicate to his lawyer about what the former president expected from him, Trump spoke admiringly about an unidentified lawyer for Hillary Clinton, the former secretary of state. Trump claimed that the lawyer had taken responsibility for deleting emails from her private server for her, an issue that prompted an FBI investigation into her handling of government material.
“He was great, he did a great job,” Trump said, according to Corcoran’s retelling in the indictment. “He said that it — that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.”
Beyond serving as potential evidence for a jury, Corcoran’s notes could prove useful to prosecutors in what is sure to be a contentious pretrial period marked by motions from Trump’s lawyers to dismiss the case for various reasons.
One of those efforts to dismiss could be a so-called selective prosecution motion, arguing that Trump has been unfairly charged when a figure like Clinton, say, was also investigated for handling classified information but never faced indictment.
Corcoran’s detailed accounts of how Trump sought to avoid handing back any classified material could be powerful evidence of his obstruction of the government’s investigation and, for that reason, serve to distinguish his case from Clinton’s.ls.