On his last day as the chief justice of the District of Columbia on Friday afternoon — in his final act — Chief Justice Beryl A. Howell did more than give the Justice Department permission to question former President Donald Trump’s personal lawyer. She actually took the rare step of turning over the lawyer’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 nearby, she handed Justice Department special counsel Jack Smith a parting gift: what she believed to be evidence of a crime related to the former president’s mishandling of classified documents after he left office.
M. Evan Corcoran, a former federal prosecutor, is representing 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 himself in legal jeopardy.
According to a source, Corcoran’s professional notes about private communications with his client were turned over to Judge Howell, who was conducting an “in camera review” — a closely controlled review of confidential records that usually takes place in a judge’s offices.
Judges who conclude that some legally protected and sensitive material must be turned over to an opposing party will usually issue an order directing one party to do so, along with a deadline. That gives the losing party an opportunity to appeal to a higher court and prevent irreversible damage that could forever taint the case, according to two lawyers not involved in the case who spoke to The Daily Beast but requested anonymity.
But Howell seems to have missed that careful but tedious approach — and simply handed Smith a bundle of documents that may show Trump and one of his lawyers were planning a crime.
Either way, Trump’s legal team is left defenseless, and federal prosecutors have more evidence to help with the next steps in their growing investigation.
“She has taken all legal protection out of their hands. If she orders them to do so, they can appeal as a matter of urgency. She may have been worried by what she read in the papers. She may not have trusted them to carry out the order,” said David Cross, an experienced federal trial litigator at the Washington firm Morrison & Foerster, who is not involved in the Trump case.
A spokesman for the DOJ special counsel did not respond to a request for comment Friday night.
On Friday, as part of sealed proceedings, Howell ordered Corcoran to provide additional testimony to the Justice Department, CNN first reported Friday. She decided that investigators could break through the typical iron blanket of the attorney-client privilege because of something called the “criminal fraud exception.” Essentially, the judge found that whatever legal advice Corcoran gave Trump was used in furtherance of a crime.
But in handing over his memos, 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 since Jan. 6 had been seeking access to documents protected by attorney-client privilege to investigate 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 committed obstruction of official proceedings … and conspiracy to defraud the United States.” But when he ordered Eastman to turn over 159 documents to a congressional committee on June 7, 2022, he gave Eastman one day to comply.
Howell’s decision Friday appears to be her last as chief justice of the highly consistent District of Columbia court, which is home to many of the nation’s most important 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, as it has the ability to strengthen the investigation. But it should be noted that the saga continues to unfold behind closed doors. Her orders in that case remain sealed and the grand jury investigation continues in legally protected secrecy.
The complete lack of transparency in this historic case — and the surprising ability of news journalists to still extract details of the secret proceedings — became the subject of much humor during her farewell on Friday, according to Politico, which described her as being “overwhelmed and occasionally baked.”
So while Trump’s open court critique of New York’s attorney general allows the American public to see how the Trump Organization has ignored subpoenas and slowed down investigators, this Justice Department effort continues largely in the shadows — even though the consequences can be much greater seriously.
Federal prosecutors are investigating criminal charges against the former president for inciting the Jan. 6 uprising, defrauding the nation and its courts with bogus election fraud conspiracies and how he refused to return classified documents stored at his South Florida beachfront mansion in Mars . a-Lago long after leaving the White House.