Normally the attorney-client work product privilege is sacrosanct. Clients depend on this principle when discussing sensitive matters with their legal counsel.

Ethically, attorneys cannot divulge communications with their clients; nor can they disclose their work product. Recently, however, one of former President Trump's lawyers was compelled by a federal judge to turn over his detailed recorded statements and notes to Special Counsel Jack Smith.

The basis of this ruling is the crime-fraud exception to the attorney-client privilege. This exception allows prosecutors to pierce the attorney client privilege if they believe that the tendered legal advice was subsequently used in furtherance of a crime. 

In Trump's case, prosecutors asserted that the former president deliberately misled his lawyer about the specific location of subpoenaed classified documents at Trump's Mar-a-Lago residence. The lawyer, M. Evan Corcoran, recorded his recollections of meetings with Trump concerning the documents. 

Corcoran undertook a search at Trump's seaside residence in advance of the execution of a Justice Department subpoena seeking the return of classified documents. His recorded recollections of his initial meeting with Trump and his private document search of Mar-a-Lago, when transcribed, ran to dozens of pages.

According to a report in the NYT from last summer, the transcript of Corcoran's unusually detailed recollections factored heavily in the Special Counsel's decision to bring an indictment against former President Trump in the classified documents case. Corcoran's notes could eventually make their way into Trump's trial as evidence. 

Talk about bulit-in appellate issues. Trump's legal team has correctly characterized the attorney-client privilege as one of the most fundamental principles of our legal system. Trump's lawyers, like in all of his other cases, have accused the Justice Department of trying to deny Trump his basic constitutional rights in order to obtain what they describe as "politically motivated" criminal convictions. 

One of the details contained in attorney Corcoran's notes describes how Mr. Trump asked the lawyer whether he had a duty to comply with the subpoena at all; he was advised by counsel that he did have to comply with the subpoena. 

In addition to submitting his notes, Corcoran also testified before the federal grand jury in the classified documents case. Corcoran's testimony indicated that Mar-a-Lago employees directed him to a specific storage locker where all of the documents were allegedly located. 

Based on this direction, Corcoran retrieved and turned over to the Justice Department about three dozen documents. He indicated in his correspondence covering the transmission of the classified documents that the enclosed documents were the only ones he located pursuant to his due diligence at Mar-a-Lago.

Corcoran's notes do not suggest that Mr. Trump or the Mir-a-Lago employees misled him or warded him off from searching certain areas within the residence. The notes apparently do state, however, that no one told him to look elsewhere; in places other than the storage room to which he was directed. 

Now, with hindsight, the Justice Department, and everyone else in the world, knows that Corcoran's search was incomplete to the extent that a subsequent Justice Department search turned up an entire additional trove of documents: hence the invocation of the so-called "crime fraud" exception to the attorney-client privilege. 

As Special Counsel Smith's case careens toward trial, the facts surrounding who had access to the storage room, and who moved boxes into and out of that room are the central issues in the case. The Justice Department's theory is that Trump's team treated attorney Corcoran as an unwitting accomplice who officially interacted with the government's requests for the return of all the classified documents. 

The federal judge's memorandum ordering Corcoran to produce his notes and to appear before the grand jury describe Trump's prior gamesmanship and "misdirection" as the central basis for piercing the veil of his attorney-client privilege. 

We here at Clarkston Legal will continue to monitor this interesting case. Our scrutiny of the trial will be honed in on whether Mr. Corcoran testifies at the trial and whether the transcript of the lawyer's recorded notes are published to the jury for their consideration. 

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