On her final day as chief judge of the District of Columbia on Friday afternoon — in her final act — Chief Justice Beryl A. Howell did more than authorize the Justice Department to question former President Donald Trump’s personal lawyer. She actually took the rare step of turning over the attorney’s notes to federal prosecutors, according to a person familiar with the arrangement.
In doing so, Howell may have planted the seeds for a future constitutional challenge. But in the immediate term, she has given Justice Department special counsel Jack Smith a parting gift: what she believed to be evidence of a crime involving the former president improperly withholding classified documents after he left office.
M. Evan Corcoran, a former federal prosecutor, has represented Trump in this classified documents scandal. And while Corcoran already has his hands full as Trump’s lawyer, the investigation now appears to have put Corcoran in legal jeopardy himself.
Trump Lawyer hires own lawyer in Classified Docs case
According to a source, Corcoran’s professional notes about private communications with his client were turned over to Judge Howell, who conducted an “in camera review” — a closely controlled screening of confidential records that typically takes place in a judge’s chambers.
Judges who come to the conclusion that some legally protected and sensitive material must be turned over to an opposing side usually issue an order requiring one side to do so, along with a deadline. Doing so gives the losing side the ability to appeal to a higher court — and prevent irreparable damage that could forever taint a case, according to two lawyers not involved in the case who spoke to The Daily Beast but asked not to be identified.
But Howell appears to have skipped that careful but tedious approach — and just handed over to Smith a series of documents that may show Trump and one of his lawyers are planning a crime.
Either way, Trump’s legal team is left with no recourse, and federal prosecutors have more evidence to support the next steps in their ballooning investigation.
“She has taken all the legal relief out of their hands. If she orders them to do that, they can take up a complaint on an urgent basis. She may have been concerned from what she read in the documents. She may have not trusted that they were complying with an order,” said David Cross, a veteran federal litigator at the Washington firm Morrison & Foerster, who is not involved in the Trump case.
A spokesman for the DOJ’s special counsel did not respond to a request for comment Friday night.
On Friday, as part of a sealed proceeding, Howell ordered Corcoran to provide additional testimony to the DOJ, CNN first reported Friday. She decided that investigators could penetrate the typical ironclad blanket of attorney-client privilege because of something called the “felony fraud exception.” Essentially, the judge found that whatever legal advice Corcoran gave Trump was used in furtherance of a crime.
But in reversing his notes, Howell’s alleged actions stand in stark contrast to the more traditional approach taken by a federal judge in California who faced similar questions last year. In that case, the committee on Jan. 6 sought to access documents protected by attorney-client privilege to explore how Trump hired conservative legal scholar John Eastman in an effort to stay in power after losing the 2020 election.
U.S. District Court Judge David O. Carter concluded that “President Trump and Dr. Eastman more likely than not committed obstruction of an official proceeding … and conspiracy to defraud the United States.” But when he ordered on June 7, 2022, when Eastman turned over 159 documents to the congressional committee, he gave Eastman one day to comply.
Judge blocks media access to records on Donald Trump’s compliance with Mar-a-Lago subpoena
Howell’s decision on Friday appeared to be her last as chief judge of the extremely popular D.C. court, which is home to many of the nation’s most central political debates, national security investigations and constitutional challenges.
She was replaced by James Boasberg, another federal judge who was also appointed by President Barack Obama.
Howell’s last-minute decision in the Trump case could mark a turning point in the special counsel’s investigation because it has the ability to supercharge the investigation. But especially, the saga continues to play out behind closed doors. Her orders in this case remain sealed and the grand jury investigation continues in legally protected secrecy.
The total lack of transparency in this historic case – and the surprising ability of news reporters to still squeeze out details about the secret affair – was the subject of much humor during her farewell on Friday, according to Politicalwho described her being “roasted and occasionally fried.”
So while Trump’s open-court legal filing against the New York Attorney General gives the American public a chance to see how the Trump Organization has ignored subpoenas and stymied investigators, this Justice Department effort continues largely in the shadows — even though the consequences could be far more serious .
Federal prosecutors have been investigating charges against the former president of inciting the Jan. 6 uprising, defrauding the nation and its courts with bogus election fraud conspiracies and the way he refused to return classified documents stored at his oceanfront estate in the South Florida, Mar-a-Lago long after leaving the White House.
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