'That could be killer': Ex-prosecutor predicts Trump’s lawyers will likely be forced to reveal details in court
It was reported this week that special counsel Jack Smith is asking the judge in Donald Trump's documents case to allow the crime-fraud exception in some of the attorney-client privileges or a kind of umbrella privilege called "common-interest privilege."
It prompted former federal prosecutor Harry Litman to point out that the Trump lawyers are likely in trouble and they'll probably be forced to testify before the grand jury.
National security lawyer Brandon Van Grack commented on the previous New York Times reporting on the privilege argument saying, "These are the final steps in the investigation. Manafort was indicted just a few weeks after Chief Judge Howell in DC ruled Mueller could use crime-fraud exception. Shouldn’t be a long delay for a charging decision once CJ Howell rules on this one."
Litman agreed, telling MSNBC, "we're pretty far down the line" of the investigation.
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"I think that's the headline, the focus is now on [Evan] Corcoran and [Christina] Bobb," said Litman. "What happened here is they lie about the subpoena, that's flat-out obstruction. They brought Corcoran to a grand jury, and want to know, and there's some evidence that's independent of all of this that maybe there was fraud in the communications between Trump and Corcoran. They say, what did Trump tell you? He says, well I refuse to answer because of attorney/client privilege. Smith says, 'fine, see you in court.' It's the kind of aggressive move you contrasted with [Robert] Mueller up top, that Mueller wouldn't do. And it's got Trump, and really Trump alone in the cross hairs."
The Times along with other commentators have argued that Smith's actions over the past several weeks have been an increase in seriousness or "aggressive" tactics. What the reporting appears to show is that Smith might be coming to the end of the probe, which is why the DOJ moves seem more hostile than previously.
"The question is what were the communications from Trump, and were they, as you suggest, either -- unless Corcoran decided to fall on his sword giving Trump total deniability, possible, but man, you know, you don't find that that often. Then Trump's involved in this decision. Trump told him something and it could be very strong evidence of obstruction. One quick point of process, the government just has to come forward with a little bit of a showing that there may be evidence of a crime and then the judge, Beryl Howell, will decide whether more than likely or not, that's enough to pierce the exception."
MSNBC host Nicolle Wallace noted that there is a long list of obstructions of justice around the stolen White House documents beginning as early as Feb. 2021.
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"We know there was stuff everywhere, the FBI knew exactly where it was," said Wallace. "Don't we know that Donald Trump obstructed the investigation into classified documents at Mar-a-Lago?"
"Everything you say is right," Litman agreed. "And don't kid yourself in the last few years, you've earned a law degree several times over. But what we don't know, and it's a potential pristine and killer piece of evidence, what did Trump tell you before you signed that document saying we'd done a diligent search and turned everything up? If the real answer is he wasn't involved, that's one piece of evidence that Smith doesn't have. If on the other hand, it's, 'he said just tell him this, I don't care,' whether it's true or not. Now, you have just a terrific piece of evidence that has come from the mouth of the lawyer in front of the jury. That specific piece we don't know one way or the other yet, and it could be killer."
Former FBI assistant director for counterintelligence Frank Figliuzzi said that from his observations of the case, it is clear that the DOJ is "nailing it down tight."
While there are questions about other pieces of the case, Figliuzzi said that the obstruction case "is solid." He said that it isn't necessary to prove that the lawyers were involved with a crime, but what he saw in the court language is that the actions were "in furtherance of a crime."
"That's very interesting to me, and I go back 23 years to my days in Miami, and the cocaine culture, where we had lawyers being paid in suitcases full of drug cash, and yes, we were debating about going into lawyers' offices," he recalled. "Again, it's infrequent, requires high levels, and I'm certain if Jack Smith is doing this, he's got somebody talking, more than what we described about the videotape and people moving boxes after the subpoena. I think people are talking, and I think, you know, the ultimate dilemma for a defense attorney is having to basically give evidence against their client but now it's time for them to decide do I like my career and my bar license, do I like my freedom. They're really going through things now."
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