Judge Rules Trump Lawyer Must Testify in Documents Inquiry

The ruling found that the government had met the threshold for the crime-fraud exception, which allows prosecutors to get around attorney-client privilege if they believe a crime has been committed.

A federal judge has ruled that prosecutors overseeing the investigation into former President Donald J. Trump’s handling of classified documents can pierce assertions of attorney-client privilege and compel one of his lawyers to answer more questions before a grand jury, two people familiar with the case said on Friday.

In making her ruling, the judge, Beryl A. Howell, found that the government had met the threshold for a special provision of the law known as the crime-fraud exception. That provision allows prosecutors to work around attorney-client privilege when they have reason to believe that legal advice or legal services have been used in furthering a crime.

The New York Times reported last month that prosecutors had asked Judge Howell to apply the crime-fraud exception to the grand jury testimony of M. Evan Corcoran, a lawyer who has represented Mr. Trump since last spring, as the documents investigation began heating up. Mr. Corcoran in recent months appeared before the grand jury and asserted attorney-client privilege while declining to answer certain questions.

Attorney-client privilege is a bedrock legal principle designed to protect private communications between lawyers and those they represent. Judge Howell’s ruling, issued under seal, that the crime-fraud exception applies in this case is important because it places the imprimatur of a federal judge on prosecutors’ contention that Mr. Corcoran’s legal work may have been used in the commission of a crime.

The ruling was reported earlier by CNN.

It remained unclear what crime prosecutors are asserting may have been committed — or who may have committed it. But among the subjects that the Justice Department has been examining since last year is whether Mr. Trump or his associates obstructed justice by failing to comply with repeated demands to return a trove of government material he took with him from the White House upon leaving office, including hundreds of documents with classified markings.

A statement from Mr. Trump’s office attacked Judge Howell’s ruling.

“Whenever prosecutors target the attorneys, that’s usually a good indication their underlying case is very weak. If they had a real case, they wouldn’t need to play corrupt games with the Constitution,” the statement said.

“Every American has the right to consult with counsel and have candid discussions — this promotes adherence to the law,” the statement added. “We will fight the Department of Justice on this front and all others that jeopardize fundamental American rights and values.”

Last May, before Jack Smith took over the investigation as a special counsel, federal prosecutors issued a subpoena for any classified documents still in Mr. Trump’s possession — a move taken after he had voluntarily handed over an initial batch of records to the National Archives that turned out to include almost 200 classified documents.

In response to the subpoena, Mr. Corcoran met with federal investigators in June and gave them another set of documents, more than 30 of which carried classification markings. He then drafted a statement for another lawyer to give the Justice Department saying that a “diligent search” had been conducted at Mar-a-Lago, Mr. Trump’s club and residence in Florida, and that no more classified materials remained there.

Roughly three weeks after Mr. Corcoran’s meeting with investigators, federal prosecutors issued another subpoena — this one for surveillance footage from a camera near a storage room at Mar-a-Lago. Among the subjects that Mr. Smith’s office wants Mr. Corcoran to testify about is a phone call he had with Mr. Trump around the time the subpoena for the video footage was issued, according to a person familiar with the matter.

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The surveillance footage obtained through the subpoena showed at least one Trump aide moving boxes that had been held in the storage room. That prompted prosecutors to escalate their investigation and seek a search warrant for Mar-a-Lago.

In early August, F.B.I. agents armed with the warrant descended on the property and carted away more than 100 additional classified documents. The affidavit submitted by the Justice Department to obtain the warrant said that there was “probable cause to believe that evidence of obstruction” would be found in the search.

Now that Mr. Smith has obtained an order forcing Mr. Corcoran to testify, Mr. Corcoran can appear before the grand jury and answer its questions, or appear and invoke his Fifth Amendment right against self-incrimination. He did not respond on Friday to messages seeking comment.

The Justice Department has subpoenaed a large number of people around Mr. Trump in the documents inquiry, ranging from his advisers to former White House officials to his lawyers to the staff at Mar-a-Lago, according to multiple people familiar with the demands for testimony.

The litigation surrounding Mr. Corcoran has been taking place, like all grand jury matters, in sealed submissions and at closed-door hearings. It is only one part of a broad effort by lawyers for Mr. Trump and several of his former aides to assert various privileges to limit their testimony to grand juries investigating both the classified documents case and the former president’s role in seeking to overturn the 2020 election.

Judge Howell has been handling these secret proceedings as the chief judge of Federal District Court in Washington. But she stepped down on Friday from that role as part of a normal rotation and was replaced by a new chief judge, James E. Boasberg.

The Justice Department investigation into the documents at Mar-a-Lago has taken on a new intensity since Mr. Smith assumed his position. Officials have tried to learn what people were aware of about the material that was in the boxes, according to people briefed on the matter.

For a time, investigators focused on a particular witness, Waltine Nauta, a close personal aide to Mr. Trump who worked with him in the White House and then at Mar-a-Lago. Mr. Nauta was seen on camera moving boxes that had been held in the storage area. Investigators have also interviewed the groundskeeper who helped him move the boxes, according to two people briefed on the matter.

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