Yesterday the New York Times broke a story about the Department of Justice seeking to compel the testimony of Trump attorney M. Evan Corcoran. Corcoran is deeply involved in the matter of Trump’s holding classified documents and Trump’s efforts to obstruct the investigation of that issue and the recovery of the documents.
When Trump was served with a subpoena to turnover all documents with classified markings it was Corcoran who originally drafted a sworn attestation representing that all such documents had been returned. Another attorney, Christina Bobb signed it after watering down some of the language. The DOJ subsequently learned this attestation was false, that classified documents remained at Mar-a-Lago, and that these documents were being moved in an apparent effort to hide them. The DOJ secured a probable cause search warrant and searched Mar-a-Lago, finding over 100 more classified documents.
The grand jury investigating this matter subpoenaed Corcoran to testify. Corcoran invoked the attorney/client privilege to avoid answering questions. In a sealed motion, the DOJ now seeks to break that attorney/client privilege through the “crime/fraud exception.” The crime fraud/exception says the attorney/client privilege no longer applies when the client seeks the attorney’s advice or services in the furtherance of a crime.
This means the DOJ believes Corcoran and his client, presumably Trump, committed crimes together eliminating any attorney/client privilege. The standard the judge will employ to determine whether the crime/fraud exception applies is simply whether it is more likely than not that Corcoran and Trump acted in the furtherance of a crime. This is much lower than the proof beyond reasonable doubt standard required to secure a criminal conviction.
If the judge rules in the DOJ’s favor this will be the second time a judge applied the crime/fraud exception and found that Trump acted in concert with an attorney to commit a crime. The first was with attorney John Eastman where a judge found it likely that Trump and Eastman attempted to defraud the United States and obstruct Congress with the plan to have Pence not count electoral college votes. However, in that case the discovery was to the January 6 Committee, which had no power to indict. The grand jury in the case involving Corcoran most certainly does.
However, here is the problem with what the DOJ is doing. Establishing that the crime/fraud exception applies makes certain that the 5th Amendment right against self incrimination applies. Corcoran certainly would have a reasonable basis to believe his testimony could be used against him. Getting the crime/fraud exception means that Corcoran can continue to dodge testimony by invoking his 5th Amendment rights. Which brings us to a fundamental question. Why bother to break the attorney/client privilege if doing so just allows Corcoran to plead the 5th? The answer to that question points to a DOJ plan to indict Trump.
If I can figure out this 5th Amendment dilemma, so have the attorneys at DOJ. They know they can’t secure Corcoran’s testimony merely by defeating his attorney/client privilege claim. They know they will also have to defeat Corcoran’s an almost certain to be invoked 5th Amendment claim.
There is only one way to break the 5th Amendment privilege. The DOJ can immunize Corcoran so his testimony cannot be used against him. The DOJ must be planning to do exactly that. The only reason to immunize Corcoran is so his testimony can be used to catch a bigger prize. There really can be only one such prize, Donald Trump.
One of the strongest reasons to believe that Special Prosecutor Jack Smith will indict Trump is that he is willing to sacrifice the prosecutions of lesser operators in the chain to secure testimony against Trump.