WASHINGTON – The federal judge presiding over the classified documents case of former President Donald Trump granted his request Thursday for a hearing on whether prosecutors had been permitted to improperly breach attorney-client privilege when they obtained crucial evidence from one of his ex-lawyers.
The order from U.S. District Judge Aileen Cannon ensures further delays in a criminal case that has already been snarled by significant postponements, resulting in the indefinite cancelation of trial date that had been set for May 20 in Fort Pierce, Florida. It means that Cannon will revisit a different judge's order from last year that permitted prosecutors to get testimony and other evidence from a Trump attorney that wound up being repeatedly cited in the indictment of the former president.
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Trump faces dozens of felony counts accusing him of illegally hoarding classified documents from his presidency at his Mar-a-Lago estate and obstructing the FBI’s efforts to recover them. He has pleaded not guilty.
Defense lawyers are ordinarily shielded from being forced to testify about their confidential conversations with their client but can be compelled to do so if prosecutors can show that their legal services were used in furtherance of a crime — a doctrine known as the crime-fraud exception.
The then-chief federal judge in the District of Columbia, Beryl Howell, agreed last year with special counsel Jack Smith’s team that the exception applied and ordered grand jury testimony from a Trump attorney, M. Evan Corcoran, who represented the former president when the FBI on Aug. 8, 2022, searched Mar-a-Lago for classified documents and seized boxes of classified records.
She also directed Corcoran to turn over audio recordings he made that documented his impressions of conversations he had had with Trump about returning the documents. Those conversations form the basis of key portions of the indictment, including one quote in which Trump proposed not cooperating with the FBI and Justice Department as they sought the return of classified documents that he took with him to Mar-a-Lago after he left the White House.
“Wouldn’t it be better if we just told them we don’t have anything here?" Corcoran quoted him as saying.
In her order Thursday, Cannon said there was “nothing unduly prejudicial or legally erroneous about Defendant Trump’s fact-development request,” even as she sought to deflect the Smith team's concerns that the hearing could be a “mini-trial.”
“There is a difference between a resource-wasting and delay-producing ‘mini-trial,’ on the one hand, and an evidentiary hearing geared to adjudicating the contested factual and legal issues on a given pre-trial motion to suppress, on the other,” she said.
Cannon said it was “the obligation of this Court to make factual findings afresh on the crime-fraud issue.”
The judge also denied a request for a hearing on a separate Trump team claim that the Justice Department had submitted false or misleading information in an application to search Mar-a-Lago. They argued, for instance, that the application should have noted that a senior FBI official proposed seeking the consent of Trump's lawyers for a search rather than obtaining a court-authorized search warrant.
But Cannon sided with Smith team in finding that neither that nor any other of the alleged omissions raised by the defense had any bearing on whether or not prosecutors had sufficient probable cause to search the property. She had signaled that position during a hearing earlier this week.
“Even accepting those statements by the high-level FBI official, the Motion offers an insufficient basis to believe that inclusion in the affidavit of that official’s perspective (or of the dissenting views of other FBI agents as referenced generally in his testimony) would have altered the evidentiary calculus in support of probable cause for the alleged offenses,” Cannon wrote.