A federal appeals court ruled Wednesday that an attorney for former President Donald Trump must testify and turn over records on Trump in the federal criminal investigation into the former president’s handling of U.S. government records after he left office.
Prosecutors allegedly showed in court last week that they had “sufficient” evidence that Trump “intentionally concealed” the existence of classified material at his Mar-a-Lago home from his own legal team, according to a U.S. federal judge who was overseeing the case up until late last week.
ABC News reported that sources described the contents of a sealed filing last week from U.S. Judge Beryl Howell, who on Friday stepped down as the D.C. district court’s chief judge.
Howell wrote that special counsel Jack Smith’s office had made a “prima facie showing that the former president had committed criminal violations,” and that Trump’s lawyers could now be forced to testify because the evidence revokes attorney-client privileges due to the “crime-fraud exception.” Under this exception, prosecutors seek records between a client and their attorney based upon evidence that legal advice that was given was used in furtherance of an illegal or fraudulent activity.
The D.C. Circuit Court of Appeals stayed Howell’s order temporarily on Tuesday night and ordered a rapid series of filings that needed to be filed from Trump’s lawyers.
Former federal prosecutor and independent counsel Scott Fredericksen told CBS News, “If this results in Trump’s attorney going in to testify, I think that means we are very closing to a charging decision.”
— Catherine Herridge (@CBS_Herridge) March 22, 2023
Howell ordered in her sealed filing that Trump attorney Evan Corcoran needs to comply with a grand jury subpoena to testify and that he must turn over numerous records related to what she described as an alleged “criminal scheme.”
Howell said that while prosecutors showed enough evidence to revoke Corcoran’s attorney-client privilege, they would still need to present evidence that meets a higher standard to charge and get a conviction against the former president.
“Shame on Fake News ABC for broadcasting ILLEGALLY LEAKED false allegations from a Never Trump, now former chief judge, against the Trump legal team,” a Trump spokesperson said to ABC News. “The real story here, that Fake News ABC SHOULD be reporting on, is that prosecutors only attack lawyers when they have no case whatsoever.”
The report said that the criminal investigation into Trump’s handling of classified material is focused on determining whether Trump’s lawyers falsely certified that all classified material had been returned to the U.S. government in response to a grand jury subpoena, and determining if Trump sought to conceal those materials.
Federal authorities recovered classified material during a search of the property in June 2022 and Trump’s legal team signed a written statement at that time certifying that all classified material had been removed from the property. Two months later, the FBI raided Mar-a-Lago and found additional materials marked as classified.
Former Trump White House lawyer Eric Herschmann reportedly warned Trump in late 2021 that he could face serious legal repercussions if he did not return the U.S. government records that he took with him after he left office.
Before Trump’s term ended, Patrick Philbin, deputy counsel to the president, was named Trump’s representative to handle matters with the National Archives along with White House counsel Pat Cipollone.
Once the National Archives realized that some of Trump’s White House records were missing, they reportedly contacted Philbin for help getting them back, according to The New York Times. Philbin reportedly tried to help the National Archives retrieve the material, but he was allegedly blocked by Trump.
Trump faces additional legal jeopardy in three other criminal investigations into him, including a federal investigation into his efforts to stay in power after the 2020 election, an investigation in Georgia into his efforts to stay in power after the 2020 election, and an investigation in New York into an alleged $130,000 hush money payment to porn actress Stormy Daniels.