Judge Cannon Sets the Stage for What Could Be a Crushing Blow for Jack Smith on Trump’s Attorney-Client Privilege

Judge Aileen Cannon’s decision to revisit another judge’s ruling allowing Special Counsel Jack Smith to collect evidence from one of President Trump’s attorneys could upend the government’s Mar-a-Lago prosecution. The testimony of that lawyer, Evan Corcoran, is crucial to Mr. Smith’s allegations that Trump committed crimes of obstruction at his manse. A district court judge at the District of Columbia, Beryl Howell, ruled that the prosecutor could “pierce” attorney-client privilege, which normally shields communication between a lawyer and his client. At an earlier stage of the case, Mr. Smith convened grand juries at Washington and south Florida. Mr. Corocran is central to Mr. Smith’s effort to convict Trump for criminal obstruction. Judge Howell allowed the government to interview the attorney before a grand jury, and ordered him to turn over two recordings he made about his interactions with the 45th president. The notes from those recordings disclose efforts by Trump to work to retain possession of the secret documents.Attorney-client privilege, while one of the most ancient known to the common law, is not absolute. In Clark v. United States, the Supreme Court ruled that a “client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.” Mr. Corcocran appears in Mr. Smith’s indictment as “Trump Attorney 1.” The special counsel writes that the former president and his valet, Waltine Nauta, moved “boxes that contained documents with classification markings so that Trump Attorney I would not find the documents and produce them.”Mr. Corcoran’s notes also capture Trump praising an attorney working for Secretary Clinton for deleting her emails. The lawyer has recused himself from the Mar-a-Lago case, though he advises Trump on other matters. The special counsel will have to prove anew that Mr. Corcoran’s “assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it.” Judge Cannon held sealed proceedings on this issue this week. She writes that Mr. Smith warned her that the reopening of the privilege question could “devolve into a mini-trial.” The jurist, though, is committed to holding a hearing, Judge Howell’s determination notwithstanding. The judge writes that “it is the obligation of this Court to make factual findings afresh on the crime-fraud issue.” She acknowledges that Mr. Smith will likely not be thrilled by the possibility of Mr. Corcoran testifying at this pre-trial session, but affirms that such displeasure “cannot overcome a defendant’s right to make a proper, even if tailored, factual record on an important claim of privilege with constitutional dimensions.”Judge Cannon explains in a footnote that Mr. Smith “expressed a general disfavor with subjecting any of his witnesses to cross-examination and possible inconsistent statements.” She allows that Mr. Smith can “request the Court to impose reasonable limitations on the evidence produced to ensure efficiency and control.” She reminds him, though, that Trump bears a “low burden to prove the applicability of the crime-fraud exception.” It was not all good news for Trump. Judge Cannon denied his request for a “Franks hearing,” a forum where a defendant can contest the affidavit that underlies a search warrant. She found that he has not made the requisite preliminary showing to allow such a session. The judge demurred from ruling on some of Trump’s motions to suppress evidence collected at Mar-a-Lago.

Judge Cannon Sets the Stage for What Could Be a Crushing Blow for Jack Smith on Trump’s Attorney-Client Privilege

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