Trump’s Legal Woes Keep Mounting: Two New, Bad Developments for the ex-President

Photo montage courtesy of The Daily Mail

Today was supposed to be indictment day in Manhattan. But that’s now delayed, perhaps until even next week. In any event, “indictment day” should be thought of as more like the first day in a longer series of such days, more like what marks the beginning of a longer, festive period. So we would do well not to celebrate too much too early, as there is likely far more to come.

We won’t know if the Manhattan grand jury investigating the adult-film star hush-money cover-up will vote today, nor if they do, what the result will be, unless of course someone (cough, Donald Trump) announces it to the press.

And this is actually pretty likely. Trump is currently in “victim” mode, so it behooves him to milk this moment and grift his followers for all it is worth. Trump understands and adores spectacle, so that includes, some sources say, actually wanting to be handcuffed and perp walked so that his followers can see how he is being treated, and so that he doesn’t look “weak” for going in quietly. (Other Trump operatives claim that handcuffs are out of the question, so we’ll have to see.)

But beyond these theatrics, there are two new serious legal developments that should have Trump concerned as he faces the biggest legal jeopardy of his life after many decades of skirting accountability. Let’s take a look at each.

Trump may lose his lawyer in the Stormy Daniels case

Leave it to Donald Trump to find a lawyer so unethical that he could get disqualified from the case on the eve of an indictment. His newest attorney, Joe Tacopina, who is perhaps most famous for trying to snatch a paper out of the hands of MSNBC’s Ari Melber to stop him from reading Trump’s prior statements on air, and for more recently saying that it will be “an all-out war” if Trump is indicted, is facing scrutiny for (checks notes) having legally consulted with Stormy Daniels back in 2018.

Daniels’s attorneys have turned over communications between Daniels and Tacopina from that period to the Manhattan DA’s office, which is now reviewing them. Per CNN’s reporting, they comprise “details relating to Daniels’ situation, according to her current attorney Clark Brewster, who believes the communications show a disclosure of confidential information from Daniels.”

Most people understand that if a lawyer at one point consulted with and received confidential information from an accuser, that would be disqualifying should the lawyer then go work for the person accused on the same matter. It’s a huge conflict of interest and presents a question of fundamental fairness.

Tacopina denies that he ever spoke with or met Daniels or received any confidential information from her. But Lordy, there are emails. And Stormy Daniels’s lawyer now claims that those emails contradict things that Tacopina has said publicly about the case. There is also a 2018 interview of Tacopina by CNN’s Don Lemon in which Tacopina suggested he had been in contact with Stormy Daniels about the hush money case before she hired someone else.

Whether this conflict will be disqualifying is up to the judge in the matter. But it is certainly a curve ball that should have been avoided a long time ago through proper disclosures and diligence. But as we have learned, Trump values loyalty and bombasity while sneering at things like ethics and decorum. And this time, that may cost him a key member of his team at a critical moment in the case.

Another of Trump’s lawyers is the subject of a flurry of motions

There’s a much more dangerous development for Trump over in D.C., and I honestly have never seen something like this. Last night, the D.C. Circuit Court of Appeals ordered a briefing schedule on an emergency appeal of a March 17 district court ruling. The panel set a deadline of midnight last night Eastern time for Trump’s lawyers to submit their papers…and then a 6 a.m. deadline for the government’s response. As I write this, the court now has both sets of papers, with the Trump team having submitted two midnight filings and the government having responded with a 6,400-word response at 5:36 a.m. Major props to Jack Smith’s team for that hustle.

So what’s this all about? Let’s talk first about the March 17 ruling from Chief Judge Beryl Howell, which she dropped just hours before her term ended and she rotated off the position, a move that still has me chuckling. The ruling was under seal, but a source informed ABC News that it was a doozy.

At issue was whether Trump’s lawyer, Evan Corcoran, should be required to testify before the grand jury and turn over documents after he claimed attorney-client privilege. The government had taken the highly unusual gamble of seeking to compel his testimony and force him to turn over those records on grounds that the “crime-fraud” exception to the attorney-client privilege applied. That exception holds that normally privileged communications between clients and their attorneys can become unprivileged if they were used to further a crime or a fraud.

We saw the January 6 Committee successfully deploy the same tactic to force the disclosure of emails in the possession of attorney John Eastman. In a civil matter where Eastman sought to prevent their disclosure, the judge ruled that it was “more likely than not” that Eastman and Trump had committed two federal felonies (i.e., obstruction of Congress and conspiracy to defraud the U.S.) and that therefore any emails that furthered those crimes were not privileged and had to be produced to the Committee.

Presently, in the Mar-a-Lago classified documents matter, Trump appears to have lost the same argument. Judge Howell found that the government had made what’s called a “prima facie showing”—meaning “clear on its face” and accepted until proven otherwise—that the ex-president had “committed criminal violations,” and that therefore any attorney-client privilege claimed by his lawyers could be pierced. (Note that this does not mean, for purposes of criminal liability, that Trump was deemed guilty; it only means that for purposes of the motion to compel Corcoran’s testimony, the government had met its burden of proof, which is lower than it will be later at trial.)

Specifically, Howell ruled that government prosecutors had shown “sufficient” evidence that Trump had “intentionally concealed” the existence of additional classified documents from his own attorney, Evan Corcoran, leading him to unwittingly deceive the government. Corcoran had drafted up a sworn statement—which he made another Trump attorney, Christina Bobb, sign—claiming that Trump had turned over all remaining classified documents after handing the FBI a Red Weld of documents in June 2022. In fact, as the warranted search for more documents at Mar-a-Lago in August 2022 showed, there were still over 100 such documents in Trump’s possession.

Under Howell’s ruling, Corcoran must comply with the grand jury subpoena for testimony on six separate lines of inquiry over which he had asserted attorney-client privilege. She further ordered him to turn over certain records—handwritten notes, invoices and transcriptions of personal audio recordings—that were connected to Trump's alleged “criminal scheme.”

Hoo boy. No wonder Trump’s attorneys went nuts. 

Those records could provide strong and difficult-to-refute evidence of Trump’s state of mind, the hardest thing to prove in this kind of case. His lawyers filed an emergency appeal of the ruling, hoping to delay Corcoran’s testimony and the turning over of those records. 

But the Trump team got a bit unlucky. The appellate court panel they drew, in a circuit that has a good number of very conservative Trump appointees, happened in this case to be all Biden- and Obama-appointed judges. And they seem not in a mood to countenance delay. 

The reason for the midnight and 6 a.m. deadlines may be as simple as this: The appellate court panel does not want to unduly hinder or put off the work of the grand jury. If Corcoran has been ordered to appear in court soon, or if the production of those records was supposed to occur, say, today, then having the two sides’ arguments and papers in hand by 6 a.m. could result in a ruling as early as sometime today.

The appellate court had placed a temporary, emergency stay on Judge Howell’s ruling, but they could readily lift that and compel testimony and disclosure of those records. And if, as Judge Howell found, they show that Trump knowingly and deliberately misled his own attorneys about the existence of top secret and/or classified documents in his possession, that would be a serious blow to his case and grounds for a grand jury to indict him on obstruction.