Lawyer still representing Trump might be key witness in classified documents case
MIAMI — When a federal magistrate judge imposed a “special condition” on Donald Trump’s bond that he could not communicate with witnesses in his classified documents case in Miami, the former president’s defense attorney objected and said that it would be “unworkable” because some of them still interact with Trump every day.
But defense attorney Todd Blanche was not just referring to Secret Service agents and Trump personnel, including one potential witness, co-defendant Walt Nauta, a former White House aide who still works for Trump as an assistant at his Mar-a-Lago estate in Palm Beach. Blanche also briefly alluded to an unnamed lawyer still employed by Trump.
“One of the key witnesses that we know is still the president’s lawyer,” Blanche said Tuesday in Miami federal court, without naming the attorney. “So a special condition that President Trump cannot communicate with his lawyer, obviously doesn’t work, respectfully, your honor.”
At Tuesday’s arraignment, Magistrate Judge Jonathan Goodman ruled as a condition that Trump and Nauta cannot communicate with witnesses about the case, asking the Justice Department’s special counsel to create a list of people who might testify at trial. The unidentified lawyer for Trump is Evan Corcoran, who is certain to be on the government’s witness list for trial because of his role in gathering classified documents at Mar-a-Lago for a federal grand jury subpoena issued in May 2022, legal experts said. The reason: Corcoran was already ordered by a federal judge to testify in March before a grand jury in Washington, D.C., after the judge found that special counsel Jack Smith had presented sufficient evidence to establish that Trump committed a crime through his attorneys, an exception to the privileged communications between them, according to published reports.
"He’s an extremely important witness because his representations to the government were predicated on what he was told by his client, Donald Trump,” said Miami criminal defense attorney Dennis Kainen, who is a past president of the Miami-Dade Bar Association and former member of the Florida Bar Board of Governors. “To the extent that the government has to prove criminal intent by Donald Trump, it is a good way to do that through the direct words of a defendant as told to his lawyer.
“It’s going to be hard for Donald Trump to walk that back. It is direct knowledge of what Trump said and knew about the classified documents."
Corcoran, a former federal prosecutor turned defense attorney in the Washington, D.C., area was representing the former president when the Justice Department and FBI demanded that Trump turn over classified documents that he had moved from the White House to Mar-a-Lago. Corcoran, who testified before the grand jury in March, is identified as “Attorney 1” in the indictment charging Trump with willfully retaining national defense information in violation of the Espionage Act, conspiring to obstruct justice and making a false statement in connection with the government’s subpoena for records.
There is likely to be an intense battle over Corcoran’s testifying as a witness for the government in the Trump documents case, which is being tried in South Florida because the 37-count indictment returned against him was ultimately voted on by a federal grand jury in Miami.
Typically, lawyers cannot be compelled to testify or produce evidence against a client in a grand jury or at trial. But in rare cases, judges can require such testimony if there is evidence that a client’s communication with their lawyers was done purposely to further a crime or a fraud. In the law, it is known as the crime-fraud exception to the attorney-client privilege. While the privilege belongs to Trump, in this instance, if the former president was using his lawyer, Corcoran, to withhold classified documents from the U.S. government, then Corcoran would no longer be bound from testifying about that part of his privileged communications with Trump.
“The defense is going to move to exclude his testimony based on attorney-client privilege,” said Kainen, who represents white-collar defendants. “A judge has already ruled on that issue as it relates to Corcoran testifying before the grand jury. The government (prosecutors) relied on this witness’ testimony for the grand jury and indictment. But the government now needs to call this witness for trial and the defense will certainly file a motion in limine (an early request that his testimony be excluded) as a violation of attorney-client privilege."
In the obstruction conspiracy count, Trump is accused of misleading Attorney 1 — Corcoran — who represented the former president as the lawyer tried to compile classified documents at Mar-a-Lago for the subpoena a year ago. At Trump’s direction, Nauta assisted the former president in this task by moving 64 boxes including some classified documents from a storage room to Trump’s residence and then brought back only 30 of those boxes to the storage room, according to the indictment. On June 2, 2022, Attorney 1 checked the boxes in the storage room and found 38 classified records and set those aside in a folder to turn over to federal investigators.
After Attorney 1 finished sealing the folder with the documents, Nauta took the lawyer to meet with Trump in the dining room at Mar-a-Lago, the indictment said. After the lawyer confirmed his search of the boxes in the storage area, Trump said to him: “Did you find anything? ... Is it bad? Good?"
Trump and Attorney 1 discussed what to do with the folder and whether the lawyer should bring them to his hotel and put them in a safe, the indictment said.
“During that conversation, Trump made a plucking motion, as memorialized by Trump Attorney 1,” the indictment said. “He made a funny motion as though — well okay why don’t you take them with you to your hotel and if there’s anything really bad in there, like, you know, pluck it out,” Attorney 1 memorialized the conversation, as noted in the indictment. “And that was the motion that he made. He didn’t say that.”
On the evening of June 2, 2022, Attorney 1 contacted the Justice Department and asked that an FBI agent meet him at Mar-a-Lago the next day to retrieve the classified documents in response to the subpoena.
However, unsatisfied with the response, the Justice Department obtained a search warrant based on video surveillance of the documents being moved around at Trump’s residence and directed an FBI raid of the Palm Beach estate and club last August, when agents discovered 102 additional government records containing national defense, weapons and nuclear information still on his property. The seizure of those records, which Trump had removed from the White House when he left office in January 2021, form the foundation of the special counsel’s criminal case along with the obstruction charge.
In the indictment, Trump is charged with deliberately keeping documents with classified markings at his Palm Beach estate. It also cites two occasions during the summer of 2021 when the former president allegedly shared classified information about a Defense Department plan to attack a foreign country with a writer, publisher and two staffers at his Bedminster Club in New Jersey. He is also accused of showing a classified map about a U.S. military operation to a representative of his political action committee. But Trump’s sharing that sensitive information is not among the 31 counts alleging violations of the Espionage Act.
"The classified documents Trump stored in the boxes included information regarding defense and weapons capabilities of both the U.S. and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation to a foreign attack,” according to the indictment. It noted that the former president stored them in various locations at Mar-a-Lago, including a ballroom, a bathroom and shower, an office, his bedroom and a storage room.
Corcoran would likely be questioned on the witness stand about the locations of the documents and their movements by prosecutors working with the Justice Department’s special counsel and by Trump’s defense lawyers on cross-examination — assuming he is compelled by a judge to testify at trial. U.S. District Judge Aileen Cannon, nominated by Trump, is among the newest additions to the federal bench in South Florida and has been randomly assigned to the documents case.
"It’s fascinating that he’s still a lawyer for Trump and didn’t withdraw,” said Miami white-collar defense attorney Mark Schnapp, a former federal prosecutor in South Florida, referring to Corcoran. “He testified to the grand jury about what Trump told him. He’s probably the most important witness in the case, but he may have a different view of the evidence than what’s presented in the indictment.”
In recent years, Schnapp and other legal experts noted, Justice Department prosecutors have become increasingly aggressive toward lawyers in efforts to pierce the veil of attorney-client privilege. Schnapp cited a compelling example: In 2016, two prominent lawyers were brought before a federal grand jury and directed to provide documents and testimony about conversations they had with a wealthy client.
They were partners at Williams & Connolly, the prestigious Washington law firm, representing Morris Zukerman, a former Morgan Stanley banker and oil investor. Zukerman was accused of failing to pay $45 million in income and sales taxes on works of art and profits from the sale of an oil company.
The two lawyers from Williams & Connolly, James A. Bruton III and James T. Fuller III, both seasoned white-collar defense lawyers, had been ordered by a Manhattan federal judge to appear before the grand jury that was investigating Zukerman to determine whether he had used the lawyers during the course of an IRS audit and inquiry to conceal his activities, according to The New York Times
Prosecutors, in a filing with the court, said Zukerman had the lawyers prepare “a tax protest letter” that challenged “certain audit determinations previously made by an IRS auditor.” In 2017, Zukerman was sentenced to five years and 10 months in prison after pleading guilty to engaging in a scheme to avoid paying income and other taxes.
© Miami Herald
