Donald Trump’s main lawyer – who was involved in turning over classified-marked documents at the Mar-a-Lago resort to the justice department last year – must provide his notes and audio transcripts to the criminal investigation after a federal appeals court rejected twin efforts to block the order.
The US appeals court for the DC circuit on Wednesday rejected two separate appeals from the former president and his lawyer Evan Corcoran to stop a sealed order, piercing attorney-client privilege and work-product doctrine protections issued in a court decision last week.
In losing the appeal – a major defeat for Trump – Corcoran must provide additional testimony and produce documents to the grand jury hearing evidence about Trump’s potential unauthorized retention of national security materials at Mar-a-Lago – and possible obstruction of justice.
The obstruction part of the investigation is centered on Trump’s incomplete compliance with a subpoena in May that demanded the return of any classified-marked documents in his possession. That was after documents he returned earlier to the National Archives included 200 that were classified.
In June, Corcoran searched Mar-a-Lago and produced about 30 documents with classified markings to the justice department, and had another Trump lawyer, Christina Bobb, sign a certification that attested to compliance with the subpoena “based on the information provided to me”.
But, according to court filings, the justice department developed evidence that more documents that were marked as classified remained at the resort, along with “evidence of obstruction”. And when the FBI searched Mar-a-Lago, they found 101 such documents in a storage room and in Trump’s office.
The ruling by the appeals court could mark a momentous moment in the criminal investigation, and could make Corcoran a crucial witness for the special counsel Jack Smith, who is overseeing the matter.
Details about the order and Corcoran’s notes are unknown because the case is under seal, though the secret appeals court battle was over a ruling last week by the then chief US judge for the District of Columbia, Beryl Howell, that there was prima facie evidence Trump used Corcoran’s legal advice to further a crime.
The order from Howell granted in part – and denied in part – the justice department’s motion to compel testimony from Corcoran on a range of subjects he discussed with Trump with respect to the obstruction element of the investigation.
What was granted by Howell included an order for Corcoran to testify about his communications with Trump about how to comply with a grand jury subpoena, issued last May, which demanded the return of any documents in his possession bearing classified markings, according to sources familiar with the matter.
The spat between Trump and the justice department began last month, when Corcoran appeared before the federal grand jury but invoked attorney-client privilege protections to avoid answering questions about his legal advice to Trump and his compliance with the May subpoena.
In an effort to force Corcoran to testify about those subjects, the department brought a motion to compel testimony from Corcoran before Howell, asking her to pierce the protections with the so-called crime-fraud exception.
The motion was partly granted by Howell last week, saying the justice department had shown sufficient evidence that Trump used the legal advice from Corcoran in furtherance of a crime. ABC News reported Howell also found evidence that Trump intentionally misled or lied to his lawyers.
As part of her decision, Howell ordered Corcoran to turn over his notes to the criminal investigation by Wednesday, one of the sources said. But before he complied with her order, the Trump legal team appealed the ruling, and the appeals court granted a temporary stay.
The appeals court then laid out an unusually tight schedule to consider the appeal, instructing the Trump legal team to file briefs by midnight on Tuesday and the justice department to file its response by 6am on Wednesday.
On Wednesday afternoon, the three-judge panel of Cornelia Pillard, Michelle Childs and Florence Pan – all Democratic appointees – dissolved the stay, and ordered Corcoran to produce his notes and transcripts of audio recordings as Howell had originally decided.
The lightning episode became complicated because the Trump legal team and Corcoran appear to have filed separate appeals: one appeal was against the justice department’s ability to question Corcoran, and the second was against the justice department’s access to Corcoran’s notes.
The appeals court lifted both temporary stays, but appears to have allowed one of the appeals to continue, with briefs due in May – meaning the appeals court is allowing the justice department to access Corcoran’s testimony and notes now so as not to delay the investigation, but still allowing him to appeal.