Washington — An appeals court in Washington, D.C., has ruled against an attorney for former President Donald Trump, ordering him to comply with a federal grand jury subpoena and provide information about his communications with Trump in its investigation into possible mishandling of documents with classified markings found at his Mar-a-Lago residence.
Trump's legal team could appeal the ruling to the entire D.C. Circuit Court of Appeals.
Late Tuesday, a three-judge panel had ordered Trump's legal team and prosecutors in special counsel Jack Smith's office to file briefs about whether the attorney, Evan Corcoran, could be compelled to address specific issues of interest to investigators.
Proceedings and written arguments remain sealed because grand jury matters are by law protected from public scrutiny, but brief entries on the public docket between midnight and 6 a.m. Tuesday showed filing deadlines for the dueling parties and ordered Trump's team to highlight specific documents at issue.
Trump's legal team appealed a decision by then-Chief Judge Beryl Howell, who had ruled some of the evidence prosecutors want from Corcoran would not be protected by attorney-client privilege.
According to sources familiar with the matter, Howell — whose term as the top judge on the Washington, D.C. District Court ended on Friday, the same day she issued the order — ruled the so-called "crime-fraud exception" should be applied to Corcoran's testimony on specific issues. Friday's ruling indicated Howell agreed with special counsel prosecutors that Corcoran could have information about the furtherance of potential criminality or fraudulent behavior that is not covered by privilege. CNN first reported the Trump team's appeal.
Of interest to investigators was an alleged call Corcoran had with Trump on June 24, 2022, around the time investigators were seeking to secure documents at Trump's home and video surveillance tapes at the Florida resort, a source told CBS News last week.
The appeals court judges — Cornelia Pillard, J. Michelle Childs and Florence Pan — paused the ruling by Howell that would have compelled Corcoran's testimony until the issue has been fully litigated. The effect of the unusually expedited argument schedule on the resolution of the matter is not yet known.
Howell's order and the appeal court's expedited schedule have prompted some legal experts to conclude Smith's classified documents investigation is moving at an accelerated pace.
"If this results in Trump's attorney going in to testify, I think that means we are very closing to a charging decision," said former federal prosecutor and independent counsel Scott Fredericksen, adding he thinks Corcoran could hold the key to any information investigators might need about efforts to obstruct their probe.
Corcoran — who appeared before a D.C. grand jury once before in the probe — has come under scrutiny for his role in Trump's response to federal investigators as they sought to obtain records with classified markings taken from the White House to the former president's Florida residence after he left office. Prosecutors have said they have reason to believe efforts were made to "obstruct" their investigation into how those records were able to leave White House grounds without permission from the National Archives, which in part prompted the execution of a search warrant at Mar-a-Lago in August.
Attorney-client privilege is not the only protection claimed by Trump's legal team in Smith's probes. Multiple Trump aides have been called to testify in both the classified documents and Jan. 6, 2021, investigations and Trump's team has mostly unsuccessfully tried to prevent their testimony on executive privilege grounds.
Notably, Trump has asserted executive privilege over former Vice President Mike Pence's testimony in the Jan. 6 investigation. A hearing before the new chief of the D.C. District Court, James Boasberg, could take place as early as Thursday to address those issues, according to three sources familiar with the matter. Pence also plans to fight the subpoena for his testimony on separation of powers grounds, telling reporters on Wednesday, "I believe that the separation of powers enshrined in the Constitution, and expressing what is known as the Speech and Debate Clause, is an enormously important element of the Constitution."
He is claiming legislative privilege on the basis of his duties as president of the Senate while he was vice president. On Jan. 6, Pence presided over Congress' counting of the electoral ballots.
Pence continued, "We were going to make sure we make our case to the appropriate courts, and maybe the highest court in the land, but I think defending that principle of separation of powers is enormously important. We'll let the courts sort that out. And at the end, we'll certainly obey the law."
Robert Costa and Jake Rosen contributed reporting.
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