Donald Trump's lawyers have been spinning a claim of prosecutorial misconduct that they think should stop the entire federal case against the former president, but it appears the issue on which they're relying might have already been resolved against them.
It has been challenging to determine what Trump's lawyers mean because this is an accusation that Trump or his allies make in almost every case. Eric Trump, for example, alleged prosecutorial misconduct back in Aug. 2020 when the Trump Org. first faced the fraud case in New York.
Speaking to MSNBC on Tuesday as Trump was booked, arrested, and pleaded not guilty, former Trump lawyer Tim Parlatore revealed that their claim relates to Evan Corcoran and the issue of attorney-client privilege.
The conversation began when former senior prosecutor to special counsel Robert Mueller probed Parlatore's talking points. Andrew Weissmann asked why the case wouldn't go to trial, and Parlatore related it all to this idea of "prosecutorial misconduct."
"This is a case where you have prosecutors who have consistently demonstrated lack of ethics and willingness to lie to federal judges and proceedings," said Parlatore. "Willingness to lie to the grand jury. Openly suggest to the jurors they may take the constitutional rights as evidence of guilt. Willingness to meet with an attorney for a witness and suggest that his application for a judgeship is something that should be considered and is a reason to convince his client to change his mind."
This is a claim that Rep. Jim Jordan (R-OH) has jumped on and it appears he might adopt it as part of his effort to attack the Justice Department from his so-called "weaponization subcommittee."
Weissmann broke in to ask for more details.
"With respect to the grand jury, how do you know what happened since that's usually secret?" he asked. Grand juries are secret and no one can reveal what was said except a witness that appeared before the grand jury.
"I was in the room. It happened right in front of me," said Parlatore. "And I do not believe for one second these prosecutors acted ethically and properly throughout all of these other witnesses in the moment I walked in the room, they started acting unethically in my presence. If anything, they would have acted on their best behavior when I was in the room."
They began asking more about what exactly Parlatore saw that was illegal, but the conversation split as they began reporting Trump's "not guilty" plea.
Weissmann returned: "I thought that was against the law, actually, that you could speak outside the grand jury room. Were you recounting what you experienced as a witness, or is it in some other context?"
Parlatore explained that he was called in as part of the custodian of records request when there was no custodian of records set. He said prosecutors didn't want him in the room, but he was allowed. He went on to say that everything he's alleging was captured in the court record, and he anticipates it will be included in the pre-trial motions.
"I expect there will be a pretrial motion or, in the alternative, to disqualify those prosecutors who engaged," he said.
There was then another break to talk about what was happening inside the Miami court.
When they returned, Parlatore revealed that the issue he was talking about was that Trump lawyer Evan Corcoran's notes were included as part of the documents subpoenaed. Corcoran was allowed to be brought into the grand jury for questions. Parlatore said that this was illegal and violated attorney-client privilege.
"When you get a chance to fully litigate the issue, you're going to get a different result," said Parlatore.
"Wasn't it already litigated in federal judge in D.C. already?" Andrea Mitchell asked.
"Not really," Parlatore falsely claimed.
On March 17, U.S. District Court Judge Beryl Howell ordered Corcoran to provide information to the grand jury. The judge ruled that the Justice Department met the threshold for the crime-fraud exception for attorney-client privilege, reported CNN. It was then appealed to the second highest court, the D.C. Circuit Court of Appeals, and it was also thrown out there.
Corcoran was stuck in a difficult position in which he was on the hook for searching for the documents ordered by subpoena. He became aware that Trump and his aide Walt Nauta were moving them around, trying to hide them. He kept notes to that effect, to protect himself, and when it came time to swear to a judge that Trump's team had done a "diligent search" through the boxes, he asked lawyer Christina Bobb to sign off "to the best of my knowledge" no additional documents were found. The FBI found that not to be the case when they executed a search warrant at Mar-a-Lago.
Former acting solicitor general Neal Katyal explained that Parlatore's ploy isn't going to fly in court.
"I don't think he's got much of a defense. I expect the first set of proceedings to be a challenge to the indictment. Motion to quash the indictment, to throw it out because of this alleged 'prosecutorial misconduct.' What was notable to me is the only thing he could come up with is an abuse of the attorney-client privilege," Katyal said. "As you just pointed out, that was his 45 examples. Give me a break. That was litigated to the chief judge in D.C., Beryl Howell, an extremely respected judge who threw it out then it went up to the nation's second-highest court, the D.C. Circuit, which also threw it out. If that's the best he's got, he doesn't have very much."
See the clips of the videos below or at the link.
Part 1: Tim Parlatore's claim
Trump lawyer Tim Parlatore reveals the key legal strategy to save Trumpwww.youtube.com
Part 2: Neal Katyal's takedown.
Neal Katyal explained why Trump's claim of "prosecutorial misconduct" isn't going to workwww.youtube.com
