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 US 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.
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 on Tuesday.