The two indictments filed so far against former President Donald J. Trump — one brought by the Manhattan district attorney, the other by a Justice Department special counsel — 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.
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.
Mr. Corcoran’s 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.
Earlier this year, over Mr. Trump’s 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 if they have reason to believe and can demonstrate to a judge that a client used legal advice to further a crime.
The ruling agreeing to the Justice Department’s 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.
Mr. Trump’s 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. Mr. Corcoran has not been accused of any wrongdoing.
Their complicated involvement in the two cases reflects the perils of the former president’s long habit of viewing lawyers as attack dogs or even political bosses rather than as advocates bound by ethical rules.
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, “brutalized” for him: the ruthless and ultimately disbarred Roy M. Cohn.
Mr. Trump is due to appear in federal court in Miami on Tuesday.
When the indictment of Mr. Trump was unsealed on Friday, it became abruptly clear that the notes by Mr. Corcoran — identified as “Trump Attorney 1” — were far more extensive, and far more damaging, than previously known.
“What happens if we just don’t respond at all or don’t play ball with them?” 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.
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’s 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.
For years, accounts from people in Mr. Trump’s circle have shaped investigators’ understanding in different inquiries.
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’s star witness.
But when Mr. Corcoran’s 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.
“I always used to think that attorneys really had a very high status in life, that when you had an attorney, that attorneys can’t be subpoenaed, they can’t be summoned to talk,” Mr. Trump told Newsmax in March after Judge Howell’s ruling. Complaining about how Mr. Corcoran had been compelled to testify in the documents investigation, he said: “They bring attorneys in as though they’re, you know, witnesses to a case. It wasn’t supposed to be that way.”
Mr. Corcoran, who was recommended for the team by Mr. Trump’s legal adviser Boris Epshteyn, could potentially be a key witness if the case goes to trial.
The special counsel’s continuing investigation into Mr. Trump’s 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.
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’s 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.
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 “blinkered” view about where remaining boxes of documents were stored.
“The government has sufficiently demonstrated all three elements” of one of the obstruction statutes “by 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,” the judge wrote in the 86-page memorandum, according to a person briefed on its contents.
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’s efforts to recover all material Mr. Trump may still have had.
“I don’t want anybody looking through my boxes, I really don’t,” the notes quote Mr. Trump as saying. “I don’t want you looking through my boxes.”
In one of the most damning passages of the notes, Mr. Corcoran describes how Mr. Trump made a “plucking motion” 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’s possession.
In his notes, Mr. Corcoran said the gesture made him think that Mr. Trump was suggesting that he should take the folder to his “hotel room and if there’s anything really bad in there, like, you know, pluck it out.”
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 that the lawyer had 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.
“He was great, he did a great job,” Mr. Trump said, according to Mr. Corcoran’s retelling in the indictment. “He said that it — 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’t get in any trouble because he said that he was the one who deleted them.”
Beyond serving as potential evidence for a jury, Mr. Corcoran’s notes could prove useful to prosecutors in what is sure to be a contentious pretrial period marked by motions from Mr. Trump’s lawyers to dismiss the case for various reasons.
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.
Mr. Corcoran’s detailed accounts of how Mr. Trump sought to avoid handing back any classified material could be powerful evidence of his obstruction of the government’s investigation and, for that reason, serve to distinguish his case from Mrs. Clinton’s.
