Former President Donald Trump is fighting a federal judge’s determination that his communications with attorney Evan Corcoran — amid a grand jury probe of Trump’s handling of classified documents — likely contain evidence of a crime.
Trump’s 2024 presidential campaign issued a statement Tuesday attacking special counsel Jack Smith and the judge who issued the sealed ruling, Beryl Howell. The statement followed increasingly detailed news reports about Howell’s determination that Corcoran could be forced to testify and turn over related documents because prosecutors had shown sufficient evidence of an alleged effort to mislead investigators.
“Prosecutors only attack lawyers when they have no case whatsoever,” the Trump campaign statement said, arguing that an ABC News report and other anonymously sourced stories about the still-sealed decision are based on illegal disclosures. “These leaks are happening because there is no factual or legal basis or substance to any case against President Trump.”
The D.C. Circuit Court of Appeals stayed Howell’s order temporarily on Tuesday night, ordering an extraordinarily rapid series of filings in a matter of hours — including one from Trump’s team by midnight Tuesday.
The appeals court’s order — from Judges Cornelia Pillard, J. Michelle Childs and Florence Pan, all Democratic appointees — doesn’t identify Corcoran or the case at issue but makes clear that the government was on the winning side of the case in Howell’s court.
The three-judge panel is asking Trump’s attorneys to specify the precise set of documents at issue by midnight and for Smith’s team to respond by 6 a.m. Wednesday to the Trump team’s demand for a longer stay of Howell’s ruling.
A spokesperson for Smith declined to comment Tuesday on the closed-door fight.
The appeals court order followed the filing by Trump-linked attorneys of a pair of appeals and stay requests tied to Howell’s decision, which came on the final day of her seven-year tenure as chief judge of the federal District Court in Washington.
The parallel submissions asked the appeals court to block Howell’s decision while the appeals go forward, docket entries show. The appeals were first reported by CNN. The short-term “administrative” stay granted Tuesday night does not appear to signal whether the appeals court will decide to keep Howell’s order on ice as full legal briefing proceeds in the dispute.
The Trump campaign statement issued Tuesday evening also dismissed Howell, a former Democratic Senate aide appointed by former President Barack Obama, as a “Never Trump” judge.
Howell’s secret order on Friday required Corcoran to testify about matters he and Trump had claimed were subject to attorney-client privilege. Her order relied on the “crime-fraud exception,” which permits investigators to pursue evidence that would ordinarily be privileged but contains evidence of likely criminal conduct.
As chief judge, Howell supervised all disputes arising from grand jury proceedings happening in Washington. That responsibility passed Friday to U.S. District Court Judge James Boasberg, who succeeded Howell as chief, but only after Howell issued the potentially momentous privilege ruling in the Trump-related legal fight.
The Trump camp’s public attack on Howell appears to be its first aimed at the veteran jurist, with Trump notably avoiding attacks against her while she single-handedly presided over the numerous grand jury disputes arising from investigations into the Jan. 6, 2021, attack on the Capitol and into the classified documents.
Even after handing off the chief’s position, however, Howell continues to hold significant sway over matters connected to Trump’s inner circle. On Tuesday, she held a hearing in a lawsuit brought by two Georgia election workers against Rudy Giuliani, chiding the longtime Trump ally and his lawyer for what she described as an inadequate approach to required exchanges of evidence in the matter.
Proceedings related to the classified-documents grand jury, including efforts by prosecutors to compel Corcoran’s testimony, are occurring under seal — typical for nearly all grand jury proceedings.
However, the appeals court’s docket shows that the rulings being appealed were issued on Friday and correspond to a dispute that was filed with the District Court on Feb. 7. That’s just days before media reports emerged of an effort by Smith to force Corcoran to appear before a grand jury investigating the handling of classified records by Trump and his aides.
Just before noon Tuesday, the appeals court consolidated the two appeals without further public explanation. Of the three judges assigned to the dispute, Pillard is an Obama appointee, while Childs and Pan are appointees of President Joe Biden.
The grand jury probe of Trump, helmed by Smith, is an outgrowth of a monthslong battle between the National Archives and Trump to obtain hundreds of government records stashed at his Mar-a-Lago estate in Florida after leaving office. Trump’s aides returned 15 boxes of records in January 2022, including some that bore classification markings. As a result, the Archives brought in the Justice Department to pursue whether Trump had retained additional classified material.
In May 2022, the Justice Department subpoenaed Trump’s office, demanding the production of any other classified materials he might possess at Mar-a-Lago. Justice Department officials traveled in early June to Mar-a-Lago, where they briefly interacted with Trump and picked up a folder of records deemed classified. Trump’s team then certified that they had thoroughly searched the premises and turned over remaining classified documents.
But the department developed evidence suggesting that this wasn’t the case, leading to an Aug. 8, 2022, search of the property, where dozens of additional documents with classification markings were discovered.
Corcoran, who was Trump’s primary point of contact with the Archives and the Justice Department, has faced scrutiny for his involvement in efforts to certify that Trump had returned all potentially classified materials.
The legal maneuvering comes as Trump’s lawyers are also awaiting a potential indictment of their client in an unrelated case in New York, an investigation by Manhattan District Attorney Alvin Bragg into details of a hush money payment made in 2016 to the porn actress Stormy Daniels.
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