By Alan Feuer, Maggie Haberman and Ben Protess
Federal prosecutors overseeing the investigation into former President Donald Trump’s handling of classified documents are seeking to pierce assertions of attorney-client privilege and compel one of his lawyers to answer more questions before a grand jury, according to two people familiar with the matter, adding an aggressive new dimension to the inquiry and underscoring the legal peril facing Trump.
The prosecutors have sought approval from a federal judge to invoke what is known as the crime-fraud exception, which allows them to work around attorney-client privilege when they have reason to believe that legal advice or legal services have been used in furthering a crime. The fact that prosecutors invoked the exception in a sealed motion to compel the testimony of the lawyer, M. Evan Corcoran, suggests that they believe Trump or his allies might have used Corcoran’s services in that way.
Among the questions that the Justice Department has been examining since last year is whether Trump or his associates obstructed justice in failing to comply with demands to return a trove of government material he took with him from the White House upon leaving office, including hundreds of documents with classified markings.
In May, the Justice Department issued a subpoena for any classified documents still in Trump’s possession, after he had voluntarily turned over an initial batch of material to the National Archives that turned out to include almost 200 classified documents. In June, Corcoran met with investigators and handed over more than 30 documents in response to the subpoena.
Another lawyer for Trump, Christina Bobb, then signed a statement asserting that a “diligent search” had been conducted at Mar-a-Lago, Trump’s residence and private club in Palm Beach, Florida, and that there were no additional documents bearing classification markings. Bobb has told investigators and others that Corcoran drafted the statement, and that she added some caveats to it, seeking to make it sound less ironclad.
But when the FBI searched Mar-a-Lago in August, agents found more than 100 additional classified documents. The affidavit submitted by the Justice Department to obtain the search warrant said that there was “probable cause to believe that evidence of obstruction” would be found in the search.
Corcoran recently appeared before a grand jury in U.S. District Court in Washington and is believed to have asserted attorney-client privilege on behalf of Trump in refusing to answer certain questions related to his representation in the documents investigation, according to three people familiar with the matter.
It remains unclear what questions Corcoran sought to avoid answering by asserting attorney-client privilege or what crime the Justice Department cited in invoking the crime-fraud exception in its motion to Judge Beryl A. Howell, the chief judge in the Washington federal courthouse, who oversees all grand jury matters.
But after his appearance in front of the grand jury, Corcoran received notice that the Justice Department was seeking to use the exception to break through his assertions of privilege, the people familiar with the matter said. Howell, who has consistently decided in the government’s favor on privilege issues surrounding Trump, will ultimately rule on the department’s request about Corcoran. She will be stepping down from the position of chief judge next month.
The push for Corcoran’s testimony is another sign of the aggressive efforts being made by Jack Smith, the special counsel overseeing the investigations into Trump, to secure testimony. Smith is guiding both the investigation into Trump’s handling of the classified documents and the inquiry into Trump’s efforts to remain in office after his election defeat in 2020 and how they led to the Jan. 6, 2021, assault on the Capitol.
A spokesperson for Trump described the latest move by the Justice Department as a politically motivated witch hunt intended to block Trump from being reelected to the White House, and predicted that it would fail.
It remained unclear if the crime-fraud arguments in the Justice Department’s motion to compel Corcoran’s testimony included evidence beyond what was initially contained in the search warrant affidavit.
It was also not immediately clear whether the Justice Department suspects misconduct by Corcoran and Trump, by Trump and others, or by Trump alone.
Although the Justice Department occasionally uses the crime-fraud exception for cases in which lawyers and their clients team up to break the law, prosecutors more commonly invoke it when they believe a client is improperly using a lawyer’s services in the furtherance of a crime, according to legal experts.
“The attorney does not have to be a co-conspirator,” said John S. Martin Jr., who served as a U.S. attorney for the Southern District of New York and is a former federal judge.
A spokesperson for the special counsel’s office declined to comment.
Prosecutors overseeing the documents investigation have also been asking witnesses questions about Boris Epshteyn, who has played a central role in coordinating lawyers on several of the investigations involving Trump, according to multiple people briefed on the matter. It was Epshteyn who first brought Corcoran into Trump’s orbit.
At least three lawyers have sat for interviews with the Justice Department during which questions about Epshteyn were asked — among them Bobb and, more recently, Alina Habba, people with knowledge of the matter said. A third lawyer close to Trump, Jesse Binnall, has also spoken with prosecutors about Epshteyn, the people said.
One person briefed on the interviews said that investigators were interested in discussions between Epshteyn and others about establishing a possible common-interest privilege in the documents case. A common-interest privilege creates a kind of umbrella privilege allowing groups of lawyers and clients to communicate with each other confidentially.
Such common-interest agreements are frequently used in cases with multiple lawyers and multiple witnesses. But prosecutors are asking questions indicating they’re interested in whether Epshteyn was trying to improperly influence witness testimony, the person briefed on the interviews said.
Binnall declined to comment.
Lawyers representing or advising Trump have been central players in both the documents and Jan. 6 investigations.
A federal judge in California issued an opinion in a civil case last year arguing that there was reasonable evidence that Trump and another one of his lawyers, John Eastman, had conspired together to commit at least two crimes in their efforts to overturn the results of the 2020 election: conspiracy to defraud the United States and obstruction of an official proceeding before Congress.
Eastman had filed a lawsuit seeking to prevent the House select committee investigating Jan. 6 from obtaining some of his emails by arguing that many were protected by attorney-client privilege. But the judge, David O. Carter, overruled him, citing the crime-fraud exception as a reason to allow the committee to have the emails.
In June, federal agents armed with a search warrant seized Eastman’s phone in connection with the Jan. 6 investigation.