As a white-collar criminal defense lawyer born, raised, and practicing in the federal criminal justice system for more than four decades, I was particularly struck by one aspect of last week’s federal indictment of Donald Trump. The indictment tells us something important that’s been getting less attention than is warranted —we now know Trump’s former main attorney, Evan Corcoran, will be the principal obstruction of justice witness against him, and a powerful one at that.
I, and many of my white-collar defense lawyer colleagues, have had difficulty figuring out why the “slam dunk” Mar-a-Lago indictment was taking so long to file. A white-collar version of a drug possession case, there was no real defense for Trump retaining those documents after being subpoenaed to turn them over. And the movement of the boxes containing classified documents at Mar-a-Lago following that subpoena for those very documents was evidenced by surveillance tapes and the likely testimony of low-level employees at the golf club. It seemed that it should take Special Counsel Jack Smith no more than a few months to file charges, especially given DOJ guidelines intended to avoid prosecutions that may impact upcoming federal elections.
Aware, of course, that while we were waiting, DOJ was in court challenging Corcoran’s assertion of the attorney-client privilege to bar his having to testify against his client, we believed that ultimately, Corcoran would be forced to testify. We also expected he would have damaging evidence against his former client, because if the courts, as expected, upheld the government’s reliance on the “crime fraud” exception to the attorney-client privilege, that meant, by definition, Trump’s communications with him contained evidence of criminality.
What we had no way of knowing was just how damaging that evidence and testimony would be, and as a result, why DOJ was willing to wait for a protracted attorney-client privilege appeals process to take place and for that critical testimony to be fleshed-out and become a key part of the prosecutorial arsenal. The indictment fills in the blanks, setting forth in specific detail the degree to which the former president tried to manipulate “Trump Attorney 1” (Corcoran) in Trump’s attempts to obstruct discovery of the documents he was concealing. This includes both lies Trump told Corcoran to help facilitate the intended obstruction, and suggestions Corcoran should lie to the DOJ and “pluck” certain documents from what had to be returned.
Of course, the last thing an attorney and a client are contemplating when their retainer agreement is signed is the prospect that the attorney will someday testify against the client in a criminal prosecution. Yet, especially in criminal cases, experienced attorneys regularly take steps to protect themselves against a client—contemplating the prospect that the client will do something against the legal advice actually given and claim that it was done per the attorney’s advice, or do something problematic that was never discussed and claim it was done at the attorney’s suggestion.
Usually, the attorney’s insurance policy comes in the form of a contemporaneous, confidential memo to the file detailing all of the relevant facts. That is what Corcoran did in spades, by dictating the specifics of damaging conversations with Trump. It has served him well. The taped narratives help to accomplish three tasks: preserve what was actually said, define the scope of Trump’s criminality and corroborate Corcoran’s independent recollection of the damning facts. As a result, he becomes a key witness of the prosecution instead of a co-defendant.
Critical parts of the indictment are based upon Corcoran’s recordings, which demonstrate the frightening lengths to which Trump was willing to go to obstruct the retrieval of the classified documents he wrongfully possessed:
a. I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.
b. Well what if we, what happens if we just don’t respond at all or don’t play ball with them?
c. Wouldn’t it be better if we just told them we don’t have anything here?
d. Well look isn’t it better if there are no documents?
Corcoran’s recording also describes how Trump not so subtly praised an attorney of Hillary Clinton, who in Trump’s telling, “deleted all of her 30,000 emails” ostensibly to protect her from federal investigators. This was presumably what Trump wanted his own lawyers to do with his own batch of documents. “[H]e was great, he did a great job,” Trump told his attorneys of the Clinton attorney. “[S]he didn’t get in any trouble because he said that he was the one who deleted them.”
As quoted in the indictment, Trump “related the story more than once that day.”
The need for lawyers to memorialize aspects of an attorney-client relationship does not arise frequently, even for those like me whose desire to draft internal memos usually arises not out of a standard “abundance of caution,” but out of my idiosyncratic “abundance of paranoia.” In Corcoran’s case, the need was compelling, with Trump’s underlying conduct so blatantly illegal that he took it a step further, by immediately dictating the events in question onto his phone. And with Trump’s well-known treatment of previous attorneys—from White House counsel Don McGahn to personal attorney Michael Cohen—that so clearly sought to draw them into his own criminality and put them in legal peril, the question arises why Trump Attorney 1 did not withdraw from representing Trump at the outset. Indeed, this is the one area ripe for the cross-examination of Corcoran.
Had it been filed in Washington, D.C., the scope and strength of the evidence detailed in the 44-page indictment would have almost surely resulted in the “slam dunk” guilty verdicts we expected. With prosecutors believing—for reasons already detailed by many and part of a discussion too complex to detail here—that they had no choice but to file in Florida, we are in a less certain mode. This is especially true if Trump appointee Judge Aileen Cannon, justifiably criticized for grossly mishandling the review of the documents seized at Mar-a-Lago—not only by legal experts, but also by a deeply conservative panel of the U.S. Court of Appeals for the 11th Circuit—ultimately becomes the trial judge.
In that event, for prosecutors to prevail Corcoran and his testimony will have to truly shine.
