The two indictments filed so far against former President Donald J. Trump \u2014 one brought by the Manhattan district attorney, the other by a Justice Department special counsel \u2014 charge him with very different crimes but have something in common: Both were based, at least in part, on the words of his own lawyers.<\/p>\n
In the 49-page federal indictment accusing him of retaining classified documents after leaving the White House and scheming to block government efforts to retrieve them, some of the most potentially damning evidence came from notes made by one of those lawyers, M. Evan Corcoran.<\/p>\n
Mr. Corcoran\u2019s notes, first recorded into an iPhone and then transcribed on paper, essentially gave prosecutors a road map to building their case. Mr. Trump, according to the indictment, pressured Mr. Corcoran to thwart investigators from reclaiming reams of classified material and even suggested to him that it might be better to lie to investigators and withhold the documents altogether.<\/p>\n
Earlier this year, over Mr. Trump\u2019s objections, the special counsel overseeing the investigation, Jack Smith, obtained the notes through an invocation of the crime-fraud exception. That exception is a provision of the law that allows prosecutors to work around the normal protections of attorney-client privilege\u00a0if they have reason to believe and can demonstrate to a judge that a client used legal advice to further a crime.<\/p>\n
The ruling agreeing to the Justice Department\u2019s request by Judge Beryl A. Howell, then the chief judge of the Federal District Court in Washington, was crucial to the shape and outcome of the investigation.<\/p>\n
Mr. Trump\u2019s legal fate could now hinge on testimony and evidence from two men he paid to defend him: Mr. Corcoran, who is still a member of his legal team, and Michael D. Cohen, a former lawyer for Mr. Trump who has helped prosecutors in New York with their case that the former president paid hush money to a porn star before the 2016 election. Mr. Cohen pleaded guilty to federal charges, including one related to a campaign finance violation, in 2018.\u00a0Mr. Corcoran has not been accused of any wrongdoing.<\/p>\n
Their complicated involvement in the two cases reflects the perils of the former president\u2019s long habit of viewing lawyers as attack dogs or even political bosses rather than as advocates bound by ethical rules.<\/p>\n
Now in his late 70s, Mr. Trump is still searching for lawyers in the mold of the one who first mentored, protected and, in his words, \u201cbrutalized\u201d for him: the ruthless and ultimately disbarred Roy M. Cohn.<\/p>\n
Mr. Trump is due to appear in federal court in Miami on Tuesday.<\/p>\n
When the indictment of Mr. Trump was unsealed on Friday, it became abruptly clear that the notes by Mr. Corcoran \u2014 identified as \u201cTrump Attorney 1\u201d \u2014 were far more extensive, and far more damaging, than previously known.<\/p>\n
\u201cWhat happens if we just don\u2019t respond at all or don\u2019t play ball with them?\u201d Mr. Corcoran quotes Mr. Trump as saying at one point, referring to government officials seeking to enforce a subpoena demanding the return of the documents.<\/p>\n
The notes referred to in the indictment underscore the extent to which the charges were built on evidence from his inner circle. Along with Mr. Corcoran\u2019s notes, prosecutors drew upon text messages from a number of his employees and a recording made of him by an aide. Prosecutors seized phones and subpoenaed documents from a wide group of his advisers.<\/p>\n
For years, accounts from people in Mr. Trump\u2019s circle have shaped investigators\u2019 understanding in different inquiries.<\/p>\n
In the New York case, centered on the hush-money payments to the porn star, the charges were based in part on testimony from Mr. Cohen. Mr. Cohen paid the woman, Stormy Daniels, and was reimbursed by Mr. Trump over time, records and testimony show. He is now the prosecution\u2019s star witness.<\/p>\n
But when Mr. Corcoran\u2019s testimony and notes became a key factor in the documents case, Mr. Trump made plain that he still viewed his lawyers as somehow exempt from legal scrutiny.<\/p>\n
\u201cI always used to think that attorneys really had a very high status in life, that when you had an attorney, that attorneys can\u2019t be subpoenaed, they can\u2019t be summoned to talk,\u201d Mr. Trump told Newsmax in March after Judge Howell\u2019s ruling. Complaining about how Mr. Corcoran had been compelled to testify in the documents investigation, he said: \u201cThey bring attorneys in as though they\u2019re, you know, witnesses to a case. It wasn\u2019t supposed to be that way.\u201d<\/p>\n
Mr. Corcoran, who was recommended for the team by Mr. Trump\u2019s legal adviser Boris Epshteyn, could potentially be a key witness if the case goes to trial.<\/p>\n
The special counsel\u2019s continuing investigation into Mr. Trump\u2019s efforts to cling to power after he lost the 2020 election has included testimony from key advisers to the former president, as did the House select committee investigation into the matter.<\/p>\n
Mr. Trump has long complained about lawyers or other advisers taking notes in front of him. But The New York Times had reported that Mr. Corcoran\u2019s notes were copious, dictated into the Voice Memos app on his iPhone after a meeting with Mr. Trump about the subpoena issued in May 2022 demanding the return of any classified documents he still had at Mar-a-Lago.<\/p>\n
In her memorandum of law explaining her ruling that Mr. Corcoran needed to provide testimony in the documents investigation, Judge Howell wrote that prosecutors had presented compelling evidence that Mr. Corcoran was misled by his client, who left the lawyer with a \u201cblinkered\u201d view about where remaining boxes of documents were stored.<\/p>\n
\u201cThe government has sufficiently demonstrated all three elements\u201d of one of the obstruction statutes \u201cby providing evidence that the former president intentionally concealed the existence of additional documents bearing classification markings from Corcoran, knowing that such deception would result in Corcoran providing an unknowingly false representation to the government,\u201d the judge wrote in the 86-page memorandum, according to a person briefed on its contents.<\/p>\n
At one point, according to the notes, Mr. Trump expressed concern about Mr. Corcoran sorting through the materials in the boxes he had taken from the White House, even though he had brought Mr. Corcoran on specifically to handle the Justice Department\u2019s efforts to recover all material Mr. Trump may still have had.<\/p>\n
\u201cI don\u2019t want anybody looking through my boxes, I really don\u2019t,\u201d the notes quote Mr. Trump as saying. \u201cI don\u2019t want you looking through my boxes.\u201d<\/p>\n
In one of the most damning passages of the notes, Mr. Corcoran describes how Mr. Trump made a \u201cplucking motion\u201d after he had placed about 40 secret documents in a folder in preparation for handing them over to federal prosecutors in compliance with a subpoena that had demanded the return of all classified documents in Mr. Trump\u2019s possession.<\/p>\n
In his notes, Mr. Corcoran said the gesture made him think that Mr. Trump was suggesting that he should take the folder to his \u201chotel room and if there\u2019s anything really bad in there, like, you know, pluck it out.\u201d<\/p>\n
In another revealing exchange about what Mr. Trump hoped to communicate to his lawyer about what the former president expected from him, Mr. Trump spoke admiringly about an unnamed lawyer for Hillary Clinton, the former secretary of state. Mr. Trump claimed\u00a0that the lawyer\u00a0had taken responsibility for deleting emails from her private server for her, an issue that prompted an F.B.I. investigation into her handling of government material.<\/p>\n
\u201cHe was great, he did a great job,\u201d Mr. Trump said, according to Mr. Corcoran\u2019s retelling in the indictment. \u201cHe said that it \u2014 that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn\u2019t get in any trouble because he said that he was the one who deleted them.\u201d<\/p>\n
Beyond serving as potential evidence for a jury, Mr. Corcoran\u2019s notes could prove useful to prosecutors in what is sure to be a contentious pretrial period marked by motions from Mr. Trump\u2019s lawyers to dismiss the case for various reasons.<\/p>\n
One of those efforts to dismiss could be a so-called selective prosecution motion, arguing that Mr. Trump has been unfairly charged when a figure like Mrs. Clinton, say, was also investigated for handling classified information but never faced indictment.<\/p>\n
Mr. Corcoran\u2019s detailed accounts of how Mr. Trump sought to avoid handing back any classified material could be powerful evidence of his obstruction of the government\u2019s investigation and, for that reason, serve to distinguish his case from Mrs. Clinton\u2019s.<\/p>\n