(WASHINGTON) — New allegations from the Justice Department on Tuesday could implicate Donald Trump’s own lawyers in a potential effort to obstruct the ongoing probe into the former president’s retention of classified documents, making the attorneys potential witnesses or even targets in the high-stakes criminal inquiry, experts tell ABC News.
In their 36-page response to Trump’s request for a “special master” to review materials seized last month from Mar-a-Lago, top DOJ officials wrote that lawyers for Trump certified in early June that a “diligent search” of the premises turned up just 38 classified documents, all of which were safely secured in one storage room.
“Critically,” the department said in the court filing, “the former president’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.”
Two months later, when FBI agents raided the South Florida estate, they found more than 100 additional classified documents — some of which were located outside of the storage unit, including in Trump’s office desk, the DOJ said.
Bruce Green, who directs a center for legal ethics at Fordham University, told ABC News that means Trump’s lawyers “either knowingly misled the government, there was a miscommunication, or they unwittingly conveyed false information at the behest of someone else at the office of Donald Trump.”
The Justice Department did not name the lawyers who engaged with investigators in June, but ABC News has reported that they are Evan Corcoran and Christina Bobb. Legal experts said both are likely now witnesses, if not targets, of a criminal proceeding — and may eventually be called to testify against the former president if prosecutors should eventually bring charges against him.
In its Tuesday filing, the Justice Department cast doubt on the information conveyed by Trump’s lawyers during their interaction in early June, when a Trump attorney signed a letter submitting that a “diligent search” had been conducted and that classified documents had exclusively been stored in the secured storage room.
“That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former president’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification,” the department wrote.
Ryan Goodman, a law professor at New York University and former special counsel to the Department of Defense, said the Justice Department’s commentary “appears to directly implicate Trump’s legal counsel in the criminal act of obstruction.”
In a Wednesday filing responding to the DOJ, Trump’s team took issue with the government’s allegations but did not directly address the question of what attorneys had told authorities about the documents at the estate.
Legal experts suggested two possible explanations for the lawyers’ misrepresentations about the volume and location of classified records: The lawyers either knew that additional documents existed elsewhere inside Mar-a-Lago and misled the government, or Trump and/or members of his team misled the lawyers, and the lawyers then conveyed that lie to investigators.
Either way, these experts said, a crime was possibly committed — meaning, at the very least, that Trump’s lawyers could be witnesses to a crime.
“If he is using the lawyers as an agent to convey lies to the government agencies,” Green said, “and if the lawyers provided false information — even unwittingly — at his behest, that would be a crime” by whoever knowingly provided that false information to the lawyers.
As investigators march ahead with their probe, experts say Trump’s lawyers may eventually be forced into the uncomfortable position of testifying against their former client. Goodman pointed to the recent prosecution of former Trump campaign manager Paul Manafort, who Trump pardoned after he was found guilty of multiple financial crimes, as a possible example for investigators to follow.
In Oct. 2017, a federal judge called Manafort’s former attorney, Melissa Laurenza, to testify before a grand jury convened as part of the special counsel’s investigation into Russian meddling in the 2016 election to discuss whether Manafort had lied to the government through his legal team.
“If Trump is indicted, it is very likely some of these lawyers will testify against him,” Goodman said. “Prosecutors will be able to put these lawyers on the stand and ask them highly revelatory questions, like, ‘Who told you there were no more documents with classified markings? Did your client have knowledge of your statement to the Justice Department?'”
Typically, interactions between attorneys and their clients are privileged. But Goodman said a legal principle known as the “crime-fraud exception” could circumvent attorney-client confidentiality in certain circumstances, especially when clients deliberately lie to their lawyers.
In any case, Green said, if any of Trump’s lawyers were found to have misled the government, it would no longer be appropriate for them to continue representing Trump.
“Trump’s lawyers have to feel that they are at risk both criminally and from a disciplinary point of view. If they were to continue to represent Trump, their personal interests could compromise their representation,” Green said. “It would be a problem for them to continue representing Trump after providing demonstrably false information to the government.”
David Laufman, a former Justice Department official in the national security division, said Wednesday that “based on DOJ’s filing, it’s hard to imagine that obstruction charges, at a minimum, ultimately will not be filed.”
“The only question,” he said, “is how many named defendants there will be.”
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