Trump's lawyers may become witnesses or targets in documents investigation

WASHINGTON — Two lawyers for former President Donald Trump are likely to become witnesses or targets in the investigation into how he hoarded documents marked as classified at Mar-a-Lago, his Florida estate — and secretly held onto some even after the lawyers claimed all sensitive materials had been returned, legal specialists said.

The lawyers, M. Evan Corcoran and Christina Bobb, handled Trump's interactions with the government over a subpoena in May seeking additional material marked as classified. In a court filing late Tuesday, the Justice Department strongly suggested that people in Trump's circle concealed documents in defiance of that subpoena, putting a spotlight on the lawyers' actions.

"They are potentially witnesses — if not defendants," Barbara McQuade, a University of Michigan law professor and a U.S. attorney for the Eastern District of Michigan from 2010 to 2017, said of the two lawyers.

The filing did not identify which lawyers for Trump took the key actions. But the New York Times has reported that after receiving the subpoena, Corcoran searched through boxes kept in a storage area in Mar-a-Lago's basement for files with classified markings.

The Times has also reported that on June 3, after Trump's lawyers met with Jay Bratt, the head of the Justice Department's counterespionage section, and FBI agents, Bobb signed a statement attesting that all the sensitive material had been returned.

During that visit, Trump's representatives turned over 38 documents with classified markings and indicated that all the records had been kept in a storage room, that no other records were stored elsewhere and that all available boxes had been searched, prosecutors said.

According to the statement Bobb signed on behalf of Trump, "based upon the information that has been provided to me," all documents responsive to the subpoena were being returned after a "diligent" search. The Times has reported that she was the designated "custodian of records" for Trump.

Yet on Aug. 8, the FBI found more than twice as many documents marked as classified than had been turned over in June, including some in Trump's office. That fact, the Justice Department wrote, "calls into serious question the representations made in the June 3 certification" — which also included a claim that no copies had been made of any files — "and casts doubt on the extent of cooperation in this matter."

Corcoran and Bobb did not respond to requests for comment.

In its filing late Tuesday, the Justice Department pointedly noted that Trump's lawyers had not been as cooperative and open as they could have been at the June 3 meeting.

"Critically, however, the former president's counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained," the filing said.

The Justice Department's account clashes with that of Trump's legal team. In a complaint filed Aug. 22 and signed by Corcoran and two other lawyers, they describe Trump and his team as providing "complete cooperation." After Bratt asked to inspect the storage room, investigators were escorted there, and once their inspection was completed, the complaint states, an FBI agent said, "Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense."

All this has increased scrutiny on whether the lawyers knowingly misled the government in coordination with Trump as their client, knowingly misled both the government and Trump, or were themselves left in the dark by Trump or others and so lacked any criminal intent.

"If the Justice Department is going to pursue criminal charges, any prosecutor is going to want to have on the record the full picture of what happened, which will require the testimony of all the witnesses with the relevant knowledge — and that certainly includes lawyers here," said Samuel Buell, a Duke University professor of criminal law and former prosecutor.

Any attempt to subpoena the two lawyers for testimony and written communications about their discussions with Trump about the matter would immediately set off a legal fight over attorney-client privilege, legal specialists said.

In normal circumstances, prosecutors seeking evidence about an investigative target cannot subpoena that target's defense lawyers and force them to testify or turn over documents about their client. Under attorney-client privilege, the confidentiality of such discussions and work is protected.

That privilege is meant to protect the rights of people who are in trouble over a past and already completed potential offense. People need to be able to talk candidly with their lawyers about what happened to understand their options. That would be impossible if whatever people admitted to their lawyers could be used against them as evidence in court.

But there is an exception. When attorney-client communications were part of continuing or future crimes, the privilege does not apply. If judges think there is sufficient evidence to trigger this "crime-fraud exception," they will uphold a subpoena forcing the defense lawyers to provide evidence about what they and their clients said to one another.

There is another potential legal hurdle. If there is reason to believe that Corcoran, Bobb or both are at risk themselves of being charged with crimes like obstruction or lying to federal investigators, they would have a Fifth Amendment right against compelled self-incrimination.

As a result, neither could likely be compelled to testify before a grand jury about their interactions with Trump without a grant of immunity from prosecution at a minimum.

Alternatively, if prosecutors believe they already have enough evidence to charge them with crimes like obstruction or making false statements, the government could try to negotiate guilty pleas that include agreements to cooperate in return for leniency.

The Tuesday filing said that the FBI — which also subpoenaed footage from Mar-a-Lago surveillance cameras and has been working with multiple witnesses — had evidence that someone had moved boxes out of a storage room before Corcoran conducted his search.

The publicly available record does not make clear whether Corcoran or Bobb knew that or whether either or both of them knew that some documents marked as top secret were also in a desk in Trump's office at the compound.

The prospect that investigators may seek to obtain information from Corcoran, Bobb or both would almost certainly meet with strenuous resistance from them and from Trump.

"Noises have already been made about attorney-client privilege," Buell said, "so it's guaranteed that is going to be a heavily litigated question."

Glenn Thrush and Alan Feuer contributed reporting.