Trump’s Attorneys and the Crimes They Enabled
The “crime-fraud exception” can break attorney-client privilege when a lawyer is believed to have, wittingly or not, contributed to a crime. It’s now been used against Trump twice.
It’s rare that a court breaks attorney-client privilege, even rarer that the reason is that the lawyer was wittingly or unwittingly contributing to a crime or fraud, and rarer still that it happens twice to the same guy. Yet, for the second time, a federal judge has invoked a doctrine known as the “crime-fraud exception” to force one of Donald Trump’s attorneys to give evidence against him. The first was when Judge David Carter ordered John Eastman to turn over evidence of his conversations with Trump about the attempted coup on January 6, 2021. The second was on March 17, when Judge Beryl Howell told attorney Evan Corcoran that he had to provide evidence about Trump’s obstruction of justice in refusing to return classified national security documents stored at Mar-a-Lago. Though these latter proceedings remain sealed, public reports suggest that Trump deliberately misled his lawyer. He is said to have lied to Corcoran about the completeness of his search for classified documents at Mar-a-Lago—a lie that Corcoran then dutifully passed along to the government as the truth.
When a court invokes the crime-fraud exception, they have necessarily concluded that the prosecutor has made a prima facie showing that the client (in this case, Trump) has committed criminal violations and either: a) the lawyer participated in the crime with the client; or b) the lawyer’s legal advice and services were used by his client to commit a crime unbeknownst to the lawyer. That by itself is significant.
The invocation of the crime-fraud exception is remarkable because of the nature of its origins and the deep reluctance with which it is approached by the legal profession. The complexity of the doctrine of crime-fraud (which is really an exception to an exception) has obscured how genuinely exceptional these events are.
The attorney-client privilege is an exception to a powerful rule: A grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” Put another way: “A grand jury investigation ‘is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.’” So there are, in practice, few limits on what evidence a grand jury may seek. A grand jury’s demand may only be opposed if “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation.” In other words, it doesn’t have to actually be evidence of a crime—the grand jury may demand anything that is plausibly connected to an investigation of the commission of a crime. Its remit to chase down the truth is extremely broad.
Privileges of any sort stand in derogation of the truth and opposed to the generally broad ability of a grand jury to make an inquiry. The attorney-client privilege is no exception, and the fact that it defeats the immense investigatory power of a grand jury is testament to how seriously it is taken. Lawyer joking aside, we might think that an attorney would be an especially good source of information about a client. But even so, we see a higher value in protecting attorney-client communications against examination. In other words, the relationship between the attorney and the client is so sacrosanct in the legal system that we exclude testimony whose truthfulness is not inherently suspect.
The canonical explanation for that sanctity is that we want to foster the ability of clients to tell the whole truth to their lawyers—this works to make the entire justice system function more effectively. The attorney-client privilege is therefore a meta-level judgment that a well-functioning adversarial court system is of such high value that society is willing to forego, at the margins, probative truthful testimony from lawyers about their clients.
And so the privilege is a longstanding exception to the general rule that grand juries are entitled to all the evidence they seek in examining whether a crime has been committed. It is one of such great systemic significance that courts rarely will breach the walls of the privilege to get at the truth.
But the premise of the privilege exception is that the lawyer’s skills are used to defend against charges for criminal conduct that lies in the past. Even the meta-value of a well-oiled legal system yields when a lawyer’s work is used to commit a new crime (or when the lawyer participates in the crime). If the legal system were to treat that sort of conduct with impunity, it would, in effect, give clients a free pass to misuse their lawyer’s special role. It would allow the protections designed to support the legal system to enable crime; the exception would swallow the rule.
That, in the end, is why the ruling about Corcoran is so significant. There are, it seems, no statistics on how frequently the crime-fraud exception is successfully invoked, but anecdotal evidence and my own experience suggests it is very infrequent. For it to have happened to a client once is notable—to have been successfully invoked against Trump twice may be completely unprecedented.
Moreover, unlike the case of Eastman (in which he was trying to use attorney-client privilege as a shield to protect himself and Trump from accountability), here the government has affirmatively made the case that Trump abused Corcoran’s trust in the service of a crime that, before Corcoran got involved, had not yet been committed. Assuming Corcoran’s good faith in his own actions (and there is, on the public record, no reason to doubt that), his testimony will be a vital part of any case against Trump. One can readily imagine what that testimony might look like:
–Mr. Corcoran, did you certify to the Federal government that a full and complete search for classified documents at Mar-a-Lago had been made?
–Yes sir, I did.
–Why did you do that?
–Because Mr. Trump told me that he had made a thorough search.
–Did you rely on that statement and believe it to be true?
–Yes, I did.
–Did you later come to learn it was false?
–Yes, I did. That would be powerful testimony and more than enough, if credited, to hold Trump accountable for the willful failure to return classified documents.
Will Corcoran’s testimony, in the end, make a difference? With Trump’s political supporters, perhaps not. We are fast approaching the point—if we haven’t already passed it—where Trump could, as he once boasted, kill someone on Fifth Avenue and his supporters would say that prosecuting him was a witch hunt, as they are currently saying about his just-announced indictment over the hush money paid to Stormy Daniels.
But for professionals who provide services to Trump, the stories of Eastman and now Corcoran must be a cautionary tale. And for those who are seeking a more objective account of Trump’s activities, the most recent decision to force Corcoran to testify before the grand jury is likely a harbinger of testimony in a trial court.
To be sure, a determination by a judge that there is prima facie evidence to support a belief that an attorney and/or his client have engaged in criminal activity is not equivalent to the requirement for a criminal conviction of “proof beyond a reasonable doubt.” But it is, all the same, an astonishing statement about the state of the evidence that demonstrates the strength of the cases against Trump.
To put it simply, if there is sufficient evidence for a judge to find the crime-fraud exception applies, then there is likely enough evidence to support the presentation of an indictment to a grand jury. That prospect cannot give Trump any real comfort, but the slow, deliberate operation of the rule of law ought to comfort those who still think that rules should matter.