Indicting A Former POTUS May Be Unprecedented

In your average mob takedown, how many lawyers get crime-fraud excepted?

And how close is Trump to that number right now?

That we know of?

— emptywheel (@emptywheel) March 17, 2023

But that’s not the only precedent being set.

Piercing attorney-client privilege is pretty rare. The fact that it has become common now is all thanks to Trump and his complete disregard for the rule of law.  And the fact he resembles a cartoon mob boss more than anything else.

There’s been recent complaining about “800 days” and no Trump indictments. The mills of the law grind slowly, but there is more grist for the mill than is widely known (like the 3rd Trump phone call (at least!) to a Georgia official seeking a do-over). IOW, for every pundit saying “Trump will get away with that crime we know about” or “that other crime we know about,” there’s really a great deal we don’t know about.

Investigations are not going stale, legal limits are not being reached, and when the indictments come I’d rather they be well grounded than sourced in conspiracy theories  a la the GOP House.

The fact so many lawyers are being forced to testify tells me the indictments that come will be worth waiting for.

The mills grind slowly, but they grind exceeding fine.

"monumental" [Reminder: This is almost certainly at least the fourth Trump lawyer whose comms were crime-fraud excepted in five years.]https://t.co/RmaQtuW504 pic.twitter.com/laQy8p6rUS

— emptywheel (@emptywheel) March 17, 2023

(As emptywheel points out elsewhere, Michael Cohen served time when his privilege was set aside due to a criminal involvement. There is a pattern here, and courts have grown comfortable granting the exception.)

Reminder that, with the addition of Evan Corcoran and (per ABC's report yesterday) Jennifer Little, 27 key witnesses or subjects in Jack Smith's twin investigations are lawyers. Will update later. https://t.co/Zti4optvYP

— emptywheel (@emptywheel) March 17, 2023

Since this ties this up rather neatly, let me just drop this here:

12/ What is most significant about this decision is what it means about Smith's investigation.

It suggests he has developed significant evidence of obstruction related to the Mar-a-Lago documents matter.

It also suggests that he continues to push that investigation forward.

— Renato Mariotti (@renato_mariotti) March 17, 2023

14/ The bottom line is that Corcoran is in a difficult position and Smith has a strong hand.

Smith took a very aggressive position and won. He is not backing down from the Mar-a-Lago documents case, which remains the most difficult case for Trump to defend. /end

— Renato Mariotti (@renato_mariotti) March 17, 2023

Smith has a lot of information, which he used to persuade the judge to set aside the attorney-client privilege (Corcoran told Christina Bobb that Trump had surrendered all the classified documents, when he hadn’t, and got her to give DOJ an affidavit to that effect. A false one, IOW.). And Smith clearly has a lot more evidence than we the public know about. Which is why it’s worth being patient.