WASHINGTON — A federal appeals court has ordered Donald Trump’s attorney to turn over documents to U.S. prosecutors in connection with an investigation into whether classified information was mishandled after the former president left the White House.
The U.S. Court of Appeals for the D.C. Circuit on Wednesday denied requests by Trump and his lawyers to halt a lower court order that would allow Justice Department special counsel Jack Smith’s office to pierce legal privileges that cover an attorney’s conversations with their client as well as their written work.
The latest order isn’t a final opinion on the merits of the fight, but it does indicate that a three-judge panel wasn’t persuaded at this stage that Trump is likely to win. Trump could ask all active judges on the D.C. Circuit to reconsider the panel’s decision or petition the U.S. Supreme Court to get involved.
Much of the legal fight remains sealed, but people familiar with the situation previously confirmed that the two consolidated appeals before the D.C. Circuit challenged a March 17 ruling by US District Judge Beryl Howell. One appeal involves Trump’s assertion of attorney-client privilege over his communications with Evan Corcoran and the second involves prosecutors’ access to material Corcoran prepared related to his representation of Trump.
Federal prosecutors convinced Howell that Trump used at least one of his lawyers in furtherance of criminal activity, according to another person familiar with the matter who asked to remain anonymous speaking about ongoing matters. The finding was previously reported by ABC News.
Legal protections known as attorney-client privilege and the attorney work-product doctrine normally would shield Corcoran from being forced to comply with the government’s demands for his testimony and for his records.
But prosecutors successfully argued before Howell that the “crime-fraud exception” to those privileges should apply in this case. That exception kicks in when the government can present evidence that a client may have used their lawyer to commit an ongoing or future crime.
Trump’s lawyers immediately appealed and the D.C. Circuit set an unusually swift schedule. Trump’s team was ordered to file additional briefing by midnight the same day it asked the appeals judges to put Howell’s ruling on hold. The government was required to file its response to Trump’s motions by 6 a.m. the next day.
A spokesperson for Trump did not immediately return a request for comment.
The case was before two of President Joe Biden’s nominees to the court, Judges J. Michelle Childs and Florence Pan, and Judge Nina Pillard, who was confirmed under former President Barack Obama.
Corcoran is part of a team of lawyers representing Trump in connection with the classified documents probe as well as a separate investigation under Smith into efforts to overturn or interfere with the results of the 2020 presidential election. In the months leading up to last summer’s court-authorized FBI search of Trump’s Mar-a-Lago estate, Corcoran had been communicating with the Justice Department as it tried to take stock of whether Trump still had documents with classified markings in his possession.
Corcoran appeared before the federal grand jury in Washington in January, but prosecutors wanted him to return to answer additional questions that Trump contends involve privileged communications.