Why a federal judge's ruling is a major setback for Trump lawyers in DOJ criminal probe: conservative

20 March 2023

Former President Donald Trump has been firing up his MAGA supporters by predicting that he will be arrested on Tuesday, March 21 in connection with hush money payments made to adult film star Stormy Daniels. And he is urging them to protest if an indictment comes down.

While campaigning for the 2024 GOP presidential nomination, Trump is facing a variety of criminal and civil investigations — some federal, and some at the state level. The investigators include the U.S. Department of Justice (DOJ) and special counsel Jack Smith, the Manhattan District Attorney's Office, Fulton County, Georgia District Attorney Fani Willis and New York State Attorney General Letitia James.

In an opinion column published by the Washington Post on March 20, Never Trumper Jennifer Rubin zeros in a ruling by U.S. District Judge Beryl A. Howell in one of Smith and DOJ's two Trump-related probes: an inquiry into government documents being stored at Mar-a-Lago. And the columnist explains why Howell's ruling is important.

Howell, Rubin notes, has ruled that Evan Corcoran, a Trump attorney, "must not only answer questions regarding his client's alleged retention of documents and obstruction of investigators but also, turn over his notes."

"The reason for piercing the normally inviolate attorney-client privilege: the crime-fraud exception," Rubin explains. "At issue, it seems, is the statement Corcoran prepared attesting that Trump's legal team had made a 'diligent search' of boxes of documents. A subsequent search conducted pursuant to a warrant turned up hundreds of classified documents Trump had not returned. Howell held that because there was sufficient evidence that Trump and Corcoran participated in a crime — e.g., violation of the Espionage Act, obstruction of justice — Trump lost the benefit of attorney-client privilege."

Howell has been the judge in both of Smith's Trump-related investigations for DOJ, and her ruling came at a time when a different judge, James E. Boasberg, is getting ready to take over. Boasberg was a Barack Obama appointee, and he was a roommate of U.S. Supreme Court Justice Brett Kavanaugh when they were students at Yale University back in the 1980s.

Legal scholar Joshua Matz, discussing Howell's ruling, told Rubin, "Courts do not lightly pierce attorney-client privilege on the basis of the crime-fraud exception, and doing so here signals a judicial understanding that some of the relevant communications likely involved ongoing or future crimes."

Rubin observes that if Trump is arrested in connection with the hush money payments to Daniels, that won't necessarily be the last indictment he will face.

"Coming on the precipice of a possible New York indictment for a record-keeping violation, Howell's ruling should underscore that Manhattan District Attorney Alvin Bragg might merely serve as the warm-up act in the Trump legal drama," the Never Trumper points out. "Yet to come from Mar-a-Lago, Georgia — focusing on the phony elector scheme — and the federal January 6, 2021 investigations are potential indictments for the most serious crimes Trump could face, crimes that go to the heart of his attempted coup and betrayal of his obligations as president."

Read Jennifer Rubin's full Washington Post column here (subscription required).

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