Executive Branch

The D.C. Circuit Gets Weird in the Mar-a-Lago Investigation

Scott R. Anderson
Thursday, March 23, 2023, 4:45 PM

An appellate court just held secret proceedings relating to former President Trump’s unlawful possession of classified documents at record-breaking speed. Why is a mystery…

The E. Barrett Prettyman Courthouse in Washington, D.C., home to the U.S. Court of Appeals for the District of Columbia. (NCinDC, https://flic.kr/p/5n8q1x; CC BY-ND 2.0, https://creativecommons.org/licenses/by-nd/2.0/)

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For the past week, all eyes have been on the city of New York, as the country has waited (and waited and waited) for the possible indictment of former President Donald J. Trump on state criminal charges relating to the cover-up of a possible extramarital affair with adult film performer Stormy Daniels. Yet a few hundred miles to the south in our nation’s capital, an even more unusual federal court proceeding relating to our former president appears to have played out—and, while many of the details remain unknown, it may suggest that more shoes are set to drop in the ongoing investigation into Trump’s unlawful possession of classified information.

The proceeding in question is the most recent phase of the investigation into Trump’s retention of classified documents after the end of his presidency, many of which were recovered by the FBI following a search of his Mar-a-Lago estate this past summer. As it relates to matters currently before a grand jury, this proceeding and its records are under seal. But certain details have come to light by virtue of court dockets, media reporting, and public statements by Trump and his campaign.

In early February, federal prosecutors reporting to Special Counsel Jack Smith reportedly petitioned a federal district court in Washington, D.C., to require one of Trump’s attorneys, Evan Corcoran, to provide certain testimony and related documents to the grand jury that he had previously asserted were subject to attorney-client privilege. They argued that this testimony and evidence—as well as similar testimony and evidence by one of Trump’s other lawyers—fell within the “crime-fraud” exception to attorney-client privilege, which renders the privilege inapplicable wherever communications between an attorney and client are used in furtherance of a crime. As support for this argument, the Justice Department reportedly presented evidence that Trump had deliberately misled Corcoran and his other attorneys about the extent to which he had retained classified documents prior to the Mar-a-Lago search, among other potential criminal activity. (While not clear from publicly available information, this likely involved the June 2022 certification issued by one of Trump’s other lawyers, Christina Bobb, asserting that a “diligent search” of Mar-a-Lago had been conducted and that Trump and his associates had handed over all the classified documents they had located to the FBI—a certification later proven false by the FBI’s search, which found a number of classified documents still on the premises, including some intermingled with Trump’s personal effects in his office.)

This past Friday, Mar. 17, Chief Judge Beryl Howell — in one of her last acts before stepping down as chief judge later that day—reportedly ruled in favor of the government, having concluded that they had presented a prima facie case that Trump had used the communications at issue in relation to a crime and that attorney-client privilege thus did not apply to certain communications between Trump and both Corcoran and another attorney, most likely Bobb. (This is a lower standard than what is actually required for indictment or conviction that is commonly used for evaluating these sorts of pretrial issues.) As a result, she ordered that Corcoran comply with the grand jury subpoena for his testimony and related evidence. Trump responded by filing an appeal to the D.C. Circuit Court of Appeals earlier this week, as one might expect. 

And that is where things got weird.

Shortly after Trump’s attorneys filed his motion to appeal, the D.C. Circuit panel to which it was assigned granted a temporary administrative stay of Judge Howell’s order. But then it set out an almost unprecedented overnight briefing schedule, instructing Trump’s attorneys to “specify each document” by midnight that night and directing the Justice Department to respond by 6:00am the next morning. 

The next day, the court reportedly issued a ruling that largely upheld Howell’s order directing Corcoran to testify before the grand jury and provide previously withheld evidence to the Justice Department. At the same time, the panel allowed Trump’s appeal to go forward on a more conventional briefing schedule (through May) to determine whether federal prosecutors will actually be able to rely on the acquired testimony and evidence when pursuing an indictment or as part of a criminal trial. If these reports are correct, this means that the Justice Department will have access to this information in short order (barring further appeal), but won’t know whether they will be able to use it to prosecute anyone, including Trump, for several months.

It is hard to underscore how unusual this sequence of events is. Appellate courts do not like to be rushed, especially in high profile cases. The fact that the D.C. Circuit panel chose to do so here suggests that something very strange is happening. While there are rumors that the panel was just trying to stick to the original timeline set out in Howell’s order, this would itself be a bit strange: district court schedules for these sorts of things get bumped all the time in the course of appeals, to the extent that it is almost expected. Here it seems more likely that some other factor was driving the court’s haste.

One possibility is that the D.C. Circuit panel—which consists of Judge Nina Pillard, an Obama administration appointee, and Judges Michelle Childs and Florence Pan, both Biden administration appointees—is simply tired of the Trump legal team’s continued delaying tactics and wishes to move the matter along. But this would also be an unusual approach for an appellate court to take. Attorney-client privilege is a sacrosanct matter in the legal system, meaning that judges are generally inclined to be extremely careful when concluding that it does not apply. This is doubly true in a high profile historic matter involving a former president.

Similarly, any suggestion that the all Democrat-appointed panel is biased against Trump inverts the incentives facing the panel. As experienced judges, all three are well aware of the political lens through which judicial opinions can be viewed and are no doubt sensitive to the public legitimacy of their decisions. Given this, the partisan composition of the panel would, if anything, have given the panel reason to take more time to deliberate on Trump’s legal arguments and otherwise signal that they were being taken seriously in order to mitigate any perception of partisan bias. 

Perhaps more importantly, neither of these arguments really align with what the panel appears to have actually decided. The panel is letting the actual appeal proceed through May on a more normal briefing schedule, and that process will have to be completed before any indictment or prosecution. Only the Justice Department’s access to the relevant information is changing in the near-term. In this sense, the panel’s willingness to work at lightning speed doesn’t move the matter towards resolution in any meaningful way that would make this logic a particularly compelling explanation, whatever the panel’s motivation.

Instead, the only way to explain the panel’s behavior would seem to be that the judges were presented with a compelling reason that the Justice Department needed access to the testimony and evidence being provided by Corcoran and the other attorney, separate and apart from indictment or prosecution. The most likely answer is that it relates to the Justice Department’s ongoing investigation. But that alone wouldn’t be enough, as appellate courts move at a deliberate pace on matters relating to ongoing investigations all the time. Instead, the Justice Department would have to present a reason why its need for that testimony and evidence is urgent enough to warrant a 24-hour turnaround. 

One possibility would be if the panel believed that the evidence would soon become unavailable if not immediately secured. This would make sense, for example, if Corcoran had a terminal disease and might not be alive by May—but we have no reason to think that’s the case. Alternatively, the court may have been worried that Corcoran has been or will be the subject of intimidation and harassment that might eventually discourage him from cooperating, a concern the Justice Department has raised elsewhere in the context of this matter. But no information suggesting such circumstances has been made public either. Nor is that possibility uncommon in criminal investigations, which could once again make it a difficult precedent to set.

Another possibility is that there may have been concerns that Corcoran or someone else would destroy the underlying evidence. That said, this seems unlikely: Corcoran has already divulged the existence of the records at issue, so destroying them now would be a highly risky maneuver. Moreover, if there were a perceived risk that Corcoran would destroy the evidence at issue, it’s not clear why that threat would suddenly become pressing now, weeks after the proceedings began. Perhaps Judge Howell was just less sensitive to the threat than the D.C. Circuit panel or was less able to expedite her proceedings, but this seems unlikely. At a minimum, the fact that any evidence has survived thus far would support the conclusion that it wasn’t really at risk.

But what if the testimony and evidence Corcoran (or the other attorney) was expected to provide could instead lead the Justice Department to new evidence? While this wouldn’t normally warrant acting with such speed—again, similar circumstances are likely to emerge in all sorts of other investigations that do not receive such special treatment—there is one type of evidence at issue in this particular investigation that the Justice Department treats with an immense sense of urgency: classified documents. The government generally views classified documents that are in the wild and outside of the government’s control as presenting an ongoing threat to U.S. national security. For this reason, it makes recovering them an urgent priority, separate and apart from prosecuting those who may mishandle them. Federal courts have generally acknowledged and accepted the government’s interest in doing so as well, including other federal appellate courts involved in the Mar-a-Lago investigation.

If this is the case, why would securing Corcoran’s testimony only become so urgent at the D.C. Circuit, after the weeks-long trial court proceedings? Given the seriousness with which attorney-client privilege is generally treated, the Justice Department may not have wanted to push too hard for a quick resolution at the trial court level, but is more comfortable doing so now that there is a trial court ruling in their favor. The D.C. Circuit may also have been more open to this option, given the deferential standard of review it seems likely to have applied to Judge Howell’s largely fact-based ruling. Alternatively, the Justice Department may have only recently uncovered new information that led it to believe that Corcoran’s testimony and evidence could point to more classified documents. Or perhaps it is concerned that there is an enhanced risk that the classified documents will be moved or destroyed now that the claims of attorney-client privilege have been rejected by the trial court. All are entirely possible in the context of an ongoing investigation.

The key point is that the need to recover classified information would be the exact sort of extenuating circumstances that could lead the D.C. Circuit to expedite its deliberations to get the Justice Department access to the evidence in question, while reserving judgment on how it might be used in the future. It’s not the only possible explanation, but it is perhaps the best fit to the facts we have available to us. What this means for former President Trump and others whose conduct lies at the heart of the investigation is unknown. But another shoe may be about to drop. And if we hear of more subpoenas or search warrants seeking classified information being issued against former President Trump in the near future, they may well be attributable to the evidence recovered as a result of the D.C. Circuit’s unusually fast review. 

All of this is, of course, rank speculation—the sort that is dangerous to dabble in and should always be taken with several grains of salt. That said, reasoning through these possibilities may still help us make sense of one of the odder developments in a historically unique investigation. This is especially true because we may not know the actual truth for quite some time, if we ever do.

For now, what we can say with confidence is this: despite its relative silence in recent months, the Justice Department’s investigation into former President Trump’s possession of classified documents is very much ongoing. The schedule set out by the D.C. Circuit for the ongoing appeal suggests that any indictment is still months away, at least if it relies on the testimony and evidence Corcoran is expected to bring forward. But the consequences for those involved may yet continue to mount.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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