An open letter to my liberal criminal defense lawyer colleagues:
I know, I know -- you really don't like Donald Trump. And even though you are a criminal defense lawyer, you don't mind him being charged or even convicted.
I'm not going to try to change your mind on any of that.
But... what prosecutors and judges are doing in order to obtain that charge and conviction should give you great concern. Specifically, according to this New York Times article, the government has forced one of Trump's lawyers, Evan Corcoran, to testify before the grand jury and to give up his work product, including written and voice notes.
This is absolutely insane.
From the Times:
Government investigators almost never obtain a clear lens into a lawyer’s private dealings with their clients, let alone with such a prominent one as Mr. Trump. A recording like the voice memo Mr. Corcoran made last year — during a long drive to a family event, according to two people briefed on the recording — is typically shielded by attorney-client or work-product privilege. Some details of the notes were reported earlier by The Guardian.
But in March, a federal judge ordered Mr. Corcoran’s recorded recollections — now transcribed onto dozens of pages — to be given to the office of the special counsel Jack Smith, who is leading the documents investigation.
The decision by the judge, Beryl A. Howell, pierced the privilege that would have normally protected Mr. Corcoran’s musings about his interactions with Mr. Trump. Those protections were set aside under what is known as the crime-fraud exception, a provision that allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or legal services were used in furthering a crime.
But using crime fraud to obtain Corcoran's lengthy voice memos to himself about his interactions with the former president is a huge stretch of that doctrine and may be used in the future to get your notes with your clients. We should all be pissed.
Unfortunately, the order by Judge Beryl Howell (a former narcotics prosecutor, who helped create and defend the Patriot Act) is sealed so we can't see the reasoning. But the Times has this:
Judge Howell’s memorandum compelling Mr. Corcoran to answer questions in front of a grand jury and to produce his notes described the lawyer as essentially a casualty of Mr. Trump’s months of gamesmanship with investigators and National Archives officials about returning the documents, according to a person familiar with the memo’s contents.
As The New York Times reported in April, Judge Howell wrote in the memorandum, according to the person familiar with its contents, that Mr. Trump’s earlier actions and “misdirection” of archives officials’ efforts to retrieve what turned out to be more than a dozen boxes of records were a “dress rehearsal” for the May subpoena.
If prosecutors can get a criminal defense lawyers' notes and impressions every time a client offers some misdirection, then get ready for a flood of motions asking for our privileged files.
This isn't the way, even if the target is Donald Trump.