Trump’s Lawyers May Become Witnesses or Targets
in Documents Investigation
Two lawyers for former President Donald J. Trump are
under increased scrutiny after new details emerged about a failure to fully
comply with a subpoena for documents marked as classified.
Charlie
Savage Maggie Haberman
By Charlie
Savage and Maggie Haberman
Aug. 31,
2022
https://www.nytimes.com/2022/08/31/us/trump-lawyers-witnesses-investigation.html
WASHINGTON
— Two lawyers for former President Donald J. Trump are likely to become
witnesses or targets in the investigation into how he hoarded documents marked
as classified at his Florida estate — and secretly held onto some even after
they claimed all sensitive materials had been returned, legal specialists said.
The
lawyers, M. Evan Corcoran and Christina Bobb, handled Mr. Trump’s interactions
with the government over a subpoena in May seeking additional material marked
as classified. In a court filing late Tuesday, the Justice Department strongly
suggested that people in Mr. Trump’s circle concealed documents in defiance of
that subpoena, putting a spotlight on the role of his lawyers and raising
questions about whether they had misled department officials and the F.B.I.
“They are
potentially witnesses — if not defendants,” Barbara L. McQuade, a University of
Michigan law professor and former U.S. attorney for the Eastern District of
Michigan from 2010 to 2017, said of the two lawyers.
The Justice
Department did not identify which of Mr. Trump’s lawyers took key actions
described in its filing. But The New York Times has reported that after
receiving the subpoena, Mr. Corcoran searched through boxes kept in a storage
area in Mar-a-Lago’s basement for files with classified markings.
The Times
has also reported that on June 3, Mr. Corcoran and Ms. Bobb met with Jay I.
Bratt, the head of the Justice Department’s counterespionage section, and
F.B.I. agents. That day, Ms. Bobb, who has been described as Mr. Trump’s
designated “custodian of records,” also signed a statement attesting that all
the sensitive material had been returned.
During the
visit, Mr. Trump’s representatives turned over 38 documents with classified
markings and indicated that all the records had been kept in a storage room,
that no other records were stored elsewhere and that all available boxes had
been searched, prosecutors said.
According
to the statement, Ms. Bobb signed on behalf of Mr. Trump that “based upon the
information that has been provided to me,” all documents responsive to the
subpoena were being returned after a “diligent” search.
Yet on Aug.
8, the F.B.I. found more than twice as many documents marked as classified than
had been turned over in June, including some in Mr. Trump’s office. That fact,
the Justice Department wrote, “calls into serious question the representations
made in the June 3 certification” — which also included a claim that no copies
had been made of any files — “and casts doubt on the extent of cooperation in
this matter.”
The
sequence of events raises the question of whether the two lawyers knowingly
misled the Justice Department. If so, they could be charged with crimes like
obstruction and making false statements. But they could defend themselves by
saying they in turn had been lied to by someone else and so did not know the
statements were misleading.
It is not
clear whom Ms. Bobb was referring to — Mr. Corcoran, Mr. Trump, both, or
someone else — when she qualified her statement with the phrase “based upon the
information that has been provided to me.” Investigators may seek to ask her
that. If Ms. Bobb were to single out Mr. Corcoran, the focus would shift to
him.
Notably, if
either of them were to say that Mr. Trump had assured them that no other
documents marked as classified remained at Mar-a-Lago, that would create a
conflict of interest, specialists said: Mr. Trump’s defense would likely be to
deny he had said that. If such a clash arises, it is doubtful they could
continue representing him as a matter of legal ethics.
Mr.
Corcoran and Ms. Bobb did not respond to requests for comment.
In its
filing late Tuesday, the Justice Department noted that Mr. Trump’s lawyers had
not been as cooperative as they could have been at the June 3 meeting, relaying
what it considered a suspicious interaction.
“Critically,
however, the former president’s counsel explicitly prohibited government
personnel from opening or looking inside any of the boxes that remained in the
storage room, giving no opportunity for the government to confirm that no
documents with classification markings remained,” the filing said.
The Justice
Department’s account clashes with that of Mr. Trump’s legal team. A complaint
filed on Aug. 22 and signed by Mr. Corcoran and two other lawyers describes Mr.
Trump and his team as providing “complete cooperation.” The complaint also
claims that after Mr. Bratt asked to inspect the storage room, investigators
were escorted there, and once their inspection was completed, an F.B.I. agent
said: “Thank you. You did not need to show us the storage room, but we
appreciate it. Now it all makes sense.”
All this
has increased scrutiny on what the lawyers said to each other and to Mr. Trump
about how they were responding to the subpoena.
“If the
Justice Department is going to pursue criminal charges, any prosecutor is going
to want to have on the record the full picture of what happened, which will
require the testimony of all the witnesses with the relevant knowledge — and
that certainly includes lawyers here,” said Samuel Buell, a Duke University
professor of criminal law and a former prosecutor.
Any attempt
to subpoena the two lawyers for testimony and written communications about
their discussions with Mr. Trump about the matter would immediately set off a
legal fight over attorney-client privilege, legal specialists said.
In normal
circumstances, prosecutors seeking evidence about an investigative target
cannot subpoena that target’s defense lawyers and force them to testify or turn
over documents about their client. Under attorney-client privilege, the
confidentiality of such discussions and work is protected.
That
privilege is meant to protect the rights of people who are in trouble over a
past and already completed potential offense. People need to be able to talk
candidly with their lawyers about what happened to understand their options.
That would be impossible if whatever people admitted to their lawyers could be
used against them as evidence in court.
But there
is an exception. When attorney-client communications are part of continuing or
future crimes, the privilege does not apply. If judges think there is
sufficient evidence to trigger this “crime-fraud exception,” they will uphold a
subpoena forcing the defense lawyers to provide evidence about what they and
their clients said to each other.
There is
another potential legal hurdle. If there is reason to believe that Mr.
Corcoran, Ms. Bobb or both are at risk themselves of being charged with crimes
like obstruction or lying to federal investigators, they would have a Fifth
Amendment right against compelled self-incrimination.
As a
result, neither could likely be compelled to testify before a grand jury about
their interactions with Mr. Trump without a grant of immunity from prosecution
at a minimum.
Alternatively,
if prosecutors believe they already have enough evidence to charge them with
crimes like obstruction or making false statements, the government could try to
negotiate guilty pleas that include agreements to cooperate in return for
leniency.
The Tuesday
filing said that the F.B.I. — which also subpoenaed for footage from Mar-a-Lago
surveillance cameras, and has been working with multiple witnesses — had
evidence that someone had moved boxes out of a storage room before Mr. Corcoran
conducted his search.
The
publicly available record does not make clear whether Mr. Corcoran or Ms. Bobb
knew that, or whether either or both of them knew that some documents marked as
top secret were also in a desk in Mr. Trump’s office at the compound.
The search
warrant listed three potential crimes: retaining national-security secrets
without authorization, obstructing an official effort and concealing government
records. At least two others would seem to arise from the search’s findings:
disobeying a subpoena and making a false statement. But investigators pursuing
any such charge need to show what a defendant personally knew about the matter.
If the
Justice Department does subpoena Mr. Corcoran and Ms. Bobb, setting up a fight
over attorney-client privilege, it will not be the first time that
investigators have confronted such issues in an inquiry related to Mr. Trump.
In October
2017, during the Russia investigation led by the special counsel Robert S.
Mueller III a judge ruled that the exception applied and upheld a subpoena
requiring a lawyer for two top Trump campaign officials, Paul Manafort and Rick
Gates, to testify about and provide records of their communications. The lawyer
had signed letters on their behalf that contained false and misleading
statements about their foreign lobbying.
And in
March, a judge ruled that the House committee that is examining the Jan. 6,
2021, attack on the Capitol could subpoena Chapman University for the emails of
John Eastman, a former law professor who supplied legal arguments to Mr. Trump
supporting his attempts to overturn the election. Mr. Eastman claimed the
emails were privileged, but the judge ruled that the exception applied because
it was “more likely than not” that they involved obstruction.
The
prospect that investigators may seek to obtain information from Mr. Corcoran,
Ms. Bobb or both would almost certainly meet strenuous resistance from them and
from Mr. Trump.
“Noises
have already been made about attorney-client privilege,” Mr. Buell said, “so
it’s guaranteed that is going to be a heavily litigated question.”
Glenn
Thrush contributed reporting from Washington, and Alan Feuer from New York.
Charlie
Savage is a Washington-based national security and legal policy correspondent.
A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and
The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of
Presidential Authority and Secrecy.” @charlie_savage • Facebook
Maggie
Haberman is a White House correspondent. She joined The Times in 2015 as a
campaign correspondent and was part of a team that won a Pulitzer Prize in 2018
for reporting on President Trump’s advisers and their connections to Russia. @maggieNYT
Sem comentários:
Enviar um comentário