Donald Trump’s attorneys play a startling role in the federal criminal indictment against him, described not only as unwitting participants in crimes he’s charged with, but also as key potential witnesses in the government’s case.
The prosecution brought by Justice Department Special Counsel Jack Smith’s office offers the latest example of risks lawyers face taking on Trump as a client.
Michael Cohen, Trump’s former longtime personal counsel-turned-foe, went to prison after pleading guilty to conduct that included work he performed on Trump’s behalf. Multiple lawyers, including former New York City mayor Rudy Giuliani, are facing challenges to their law licenses for aiding Trump’s efforts to overturn the 2020 presidential election.
Trump is charged with unlawfully holding on to sensitive national security information after he left the White House in January 2021 and of obstructing the government’s efforts to identify and retrieve the records. Three lawyers described in the indictment narrative aren’t charged with crimes and legal experts say it’s unlikely they’d face ethics investigations based on the facts laid out by prosecutors.
But no attorney wants to be in a situation where their work is being scrutinized in a criminal investigation, the experts said.
“It’s frankly imprudent and extremely risky for anyone to represent Trump in anything other than” a trial setting, said Kathleen Clark, a legal ethics expert and professor at Washington University in St. Louis School of Law. “Anytime you’re dealing with Trump in a transaction or as a go-between with the government or anybody, that’s very risky because he has such a clear track record.”
Prosecutors have accused Trump of using his lawyers as part of the obstruction scheme. The indictment, which was unsealed Friday, describes how one lawyer “memorialized” conversations where Trump appeared to be considering options to defy a May 2022 grand jury subpoena seeking the return of classified material; the lawyer is identified as “Attorney 1” but the events match descriptions of Trump attorney Evan Corcoran in other publicly available court documents.
Trump’s comments at the time, as quoted by prosecutors, included, “What happens if we just don’t respond at all or don’t play ball with them,” and “Wouldn’t it be better if we just told them we don’t have anything here?”
The indictment alleges that Trump directed his personal aide – and now-codefendant – Waltine “Walt” Nauta to move boxes so that “Attorney 1” wouldn’t find documents that might be responsive to the grand-jury subpoena.
The government also said that “Attorney 3” – identified by multiple media outlets as Christina Bobb – was asked to sign a certification to the government that a “diligent search” was done of boxes moved from the White House to Florida, even though she hadn’t been part of that effort. That certification did include hedging language that it was based on information “provided to” her.
Bobb and Corcoran declined to comment. A Trump spokesperson didn’t return a request for comment.
Corcoran testified at least twice before a grand jury in the documents probe. The second appearance came after he and Trump lost court challenges to the special counsel’s demand for his testimony as well as his work product. Prosecutors successfully argued for the “crime-fraud exception” to attorney-client privilege, which applies if the government has evidence a client may have used their lawyer to commit an ongoing or future crime.
The exception “is not lightly invoked by the Justice Department and neither is it lightly granted by courts because of course clients – even clients who have done dastardly deeds or who have been accused of doing dastardly deeds – absolutely have a right to consult their lawyer,” Clark said. “What they don’t have is a right to use their lawyers in continuing fraud.”
Sarah Krissoff, a white collar defense lawyer in New York and former federal prosecutor, said it’s incumbent on lawyers to make the line clear.
“I have clients ask me all the time, ‘What’s protected about what I tell you?’ You told me you robbed a bank yesterday, that’s protected. You tell me you want to use me to launder your bank robbery proceeds, that’s not going to work,” she said.
Clark said that although it’s possible Corcoran and Bobb could face challenges in the future securing clients given the notoriety of their roles in the documents case, she didn’t see conduct in the indictment that would trigger an investigation by state bar authorities into whether they violated any attorney ethics rules.
Bobb also testified before the grand jury, but there’s no public indication that she or Trump opposed the government’s request to question her.
Trump last week announced that two lawyers who had been representing him in the special counsel investigations – Smith is also overseeing a probe into the 2020 election – James Trusty and John Rowley, would no longer be involved.
Corcoran had recused from the documents matter but has continued to represent Trump, including in the election probe. Trump hasn’t given any indication that Corcoran is no longer part of his legal team.
