WASHINGTON (AP) — The federal judge presiding over the former president’s secret documents case Donald Trump has granted a defense request for a hearing on whether prosecutors unlawfully violated attorney-client privilege when they obtained crucial evidence from his ex-lawyers.
But U.S. District Judge Aileen Cannon also denied a request for a hearing on a separate claim by the Trump team that the Justice Department submitted false or misleading information in an application for an injunction two years ago to seize Trump’s Florida estate to search for secret documents.
The decision leads to mixed results for both sides and adds further delays to a criminal case that was already experiencing significant delays. This has led to the indefinite postponement of a trial scheduled to begin on May 20 in Fort Pierce, Florida.
In an effort to suppress as evidence the classified documents seized by the FBI during the Aug. 8, 2022, Mar-a-Lago search, defense attorneys have said the Justice Department omitted or misrepresented certain facts in its request for a subpoena. For example, they argued that the request should have disclosed that a senior FBI official had suggested seeking Trump’s lawyers’ consent to a search rather than obtaining a court-approved warrant.
But Cannon sided with prosecutor Jack Smith’s team in concluding that neither this nor any other alleged omissions raised by the defense had any bearing on whether or not prosecutors had sufficient probable cause to search the premises.
“Even if we accept these statements of the senior FBI official, the Motion does not provide sufficient basis to believe that inclusion in the affidavit of that official’s perspective (or of the differing views of other FBI agents, as stated in his testimony is generally mentioned) would have changed the situation. the weight of evidence account in support of probable cause of the alleged violations,” Cannon wrote.
But her order was not a complete victory for the government, as she said she would schedule a separate hearing to discuss whether prosecutors unlawfully obtained the cooperation of Trump’s lawyers through an attorney-client exception privilege.
Defense attorneys are typically shielded from having to testify about their confidential conversations with their clients, but may be forced to do so if prosecutors can prove that their legal services were used in furtherance of a crime — a doctrine known as the crime of fraud -exception.
Then-chief federal judge in the District of Columbia Beryl Howell agreed with Smith’s team that the exception applied and ordered grand jury testimony from two of Trump’s lawyers. She also ordered one of his lawyers, M. Evan Corcoran, to turn over audio recordings documenting his impressions of conversations he had with Trump about returning the documents. Those conversations are repeatedly cited in the indictment and used as incriminating evidence by prosecutors.
“It is the duty of this Court to make new findings of fact on the issue of crime fraud,” Cannon wrote. “And a standard means of making such findings – as is common in criminal oppression trials – is to attend an evidentiary hearing at which both sides can present evidence (documentation and testimony, if applicable).”
