Trump Denies Order Piercing Attorney-Client Privilege, Files Appeals Of Same

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Last night, the DC Circuit broke a land speed record for a TRO with this per curiam order issued at 8:14 p.m.

PER CURIAM ORDER 1991167 filed that the motion for leave to exceed the word limit be granted. The Clerk is directed to file the lodged motion. It is FURTHER ORDERED, on the court's own motion, that the district court's March 17, 2023 order be administratively stayed pending further order of the court. It is FURTHER ORDERED, on the court's own motion, that by 12:00 midnight tonight, appellants specify each document. It is FURTHER ORDERED that the government file a response to the motions for stay by 6:00 a.m. on Wednesday, March 22, 2023. (SEE ORDER FOR DETAILS) Before Judges: Pillard, Childs and Pan.

The issue here is a sealed ruling on Friday by Judge Beryl Howell, abrogating attorney-client privilege under the crime-fraud exception and ordering Donald Trump's lawyer Evan Corcoran to testify more fully to the jury impaneled to investigate the former president's retention of government records. Corcoran has run point for Trump on the documents case for more than a year now, negotiating with the government and assuring Jay Bratt, head of the DOJ's counterintelligence division, that Trump had turned over all the classified materials in his possession. During a June meeting at Mar-a-Lago, Corcoran gave Bratt what he said were the remaining classified documents, as attested by attorney Christina Bobb in a declaration drafted by Corcoran. Two months later, the FBI executed a warrant and discovered 100 more classified records on the premises.

The Daily Beast's Jose Pagliery was first to break the news that Judge Howell, who stepped down last week as chief of the District Court for DC, ordered Corcoran not only to testify, but to hand over documents, including notes about his communications with Trump. And she didn't stay the order pending appeal.

On Saturday, ABC got further detail of Judge Howell's ruling, including that she'd found prima facia evidence that Trump hid the fact that there were additional classified documents on the premises of the private club where he lives, and that the materials to be handed over to prosecutors included "transcriptions of personal audio recordings." Whether that means voice mails or Lordy, I hope there were tapes! is unclear.

The network reports:

In her order last Friday, Howell was unsparing in her criticism of Trump's actions since early last year in response to the government's attempts to retrieve all classified documents taken from the White House. At one point she described Trump's interactions with officials from the National Archives as a "dress rehearsal," sources said, for his later efforts at misdirection in response to the grand jury subpoena.

In the meantime, Trump's lawyers raced to the DC Circuit to get a stay of Judge Howell's edict, and they got one -- sort of. Judges Pan, Pillard, and Childs (all three Democratic appointees) administratively stayed enforcement and ordered the blistering briefing schedule listed above. The parties have now complied, and presumably the court intends to rule imminently.

Naturally, the Trump campaign issued a statement denying ABC's reporting and slagging Judge Howell.

"Shame on Fake News ABC for broadcasting ILLEGALLY LEAKED false allegations from a Never Trump, now former chief judge, against the Trump legal team," he shrieked, without stating exactly which part of the story was "false."

Trump went on to rail against "deranged Democrats and their comrades in the mainstream media" who are "corrupting the legal process and weaponizing the justice system in order to manipulate public opinion, because they are clearly losing the political battle."

He then went on to broadly confirm that prosecutors are seeking to put his lawyer in the spotlight: "The real story here, that Fake News ABC SHOULD be reporting on, is that prosecutors only attack lawyers when they have no case whatsoever."

Perhaps the DC Circuit will agree with him. Or maybe not.

In re Sealed Case [Docket via Court Listener]
Sources: Special counsel claims Trump deliberately misled his attorneys about classified documents, judge wrote [ABC]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.