The US Department of Justice (DOJ) has used the “crime-fraud exception” to subpoena Evan Corcoran, a lawyer representing former President Donald Trump, in an investigation into whether classified documents were mishandled at Trump’s Mar-a-Lago estate.
The “crime-fraud exception” is a legal tool that overrides attorney-client privilege claims when there is evidence that a defendant relied on a lawyer’s advice to advance an ongoing or future crime. It is a rarely used strategy that requires careful vetting under DOJ guidelines. In the past, the exception has been used in cases involving four Trump-affiliated lawyers since 2017. DOJ prosecuted three of those matters, while the House Jan. 6 committee used the exception in a fourth.
Former DOJ officials say that Trump is an outlier regarding this rarely-used strategy that requires careful vetting under DOJ guidelines. Trump has worked with many different attorneys, and he frequently parts ways with his lawyers when they no longer agree on how to move forward, says Sarah Krissoff, a former prosecutor with the US attorney’s office in the Southern District of New York.
DOJ litigators, including those on a special counsel’s team, must get sign-off from the Criminal Division’s top official or a deputy at the division’s headquarters before using the “crime-fraud exception” to subpoena a defense attorney. The application gets reviewed by career lawyers at the Criminal Division’s Office of Enforcement Operations before going up to the deputy assistant attorney general overseeing that office.
In some instances, the government’s filing for a “crime-fraud exception” never gets unsealed. In other high-profile circumstances, the DOJ’s application to override privilege gains publicity, such as in the money-laundering trial stemming from the “Panama Papers” leak and the fraud prosecution of a man who claimed an ownership stake in Meta Platforms Inc.’s Facebook.
Trump and his allies have cast this pattern as proof his legal team is the target of a political witch hunt. In two other instances over the past five years, privilege didn’t hold up for lawyers directly representing Trump. John Eastman’s emails were accessed by the US House panel investigating the attack on the Capitol, and the FBI raided Michael Cohen’s office in 2018. Legal experts cited “crime fraud” as DOJ’s presumed tactic with Cohen, although the department didn’t reveal whether it was invoked.
The Mar-a-Lago case draws parallels with the case of former Trump campaign chairman Paul Manafort. In the Manafort case, Corcoran reportedly wrote to DOJ claiming all classified material had been turned over several months before an FBI subpoena uncovered additional classified documents at Trump’s home in August. Manafort’s lawyer was accused of misleading DOJ by minimizing his lobbying in Ukraine. US District Chief Judge Beryl Howell approved the “crime-fraud exception” in Washington to compel Manafort’s lawyer to testify. Howell is also presiding over the Mar-a-Lago case and could soon issue a decision that illustrates another reason why “crime fraud” is infrequently applied.
REFERENCES:
Attorney-Client Exception Said to Trip Up Another Trump Lawyer