WASHINGTON — Two lawyers for former President Donald J. Trump are likely to become witnesses or targets in the investigation into how he hoarded documents marked as classified at his Florida estate — and secretly held onto some even after they claimed all sensitive materials had been returned, legal specialists said.
The lawyers, M. Evan Corcoran and Christina Bobb, handled Mr. Trump’s interactions with the government over a subpoena in May seeking additional material marked as classified. In a court filing late Tuesday, the Justice Department strongly suggested that people in Mr. Trump’s circle concealed documents in defiance of that subpoena, putting a spotlight on the role of his lawyers and raising questions about whether they had misled department officials and the F.B.I.
“They are potentially witnesses — if not defendants,” Barbara L. McQuade, a University of Michigan law professor and former U.S. attorney for the Eastern District of Michigan from 2010 to 2017, said of the two lawyers.
The Justice Department did not identify which of Mr. Trump’s lawyers took key actions described in its filing. But The New York Times has reported that after receiving the subpoena, Mr. Corcoran searched through boxes kept in a storage area in Mar-a-Lago’s basement for files with classified markings.
The Times has also reported that on June 3, Mr. Corcoran and Ms. Bobb met with Jay I. Bratt, the head of the Justice Department’s counterespionage section, and F.B.I. agents. That day, Ms. Bobb, who has been described as Mr. Trump’s designated “custodian of records,” also signed a statement attesting that all the sensitive material had been returned.
During the visit, Mr. Trump’s representatives turned over 38 documents with classified markings and indicated that all the records had been kept in a storage room, that no other records were stored elsewhere and that all available boxes had been searched, prosecutors said.
According to the statement, Ms. Bobb signed on behalf of Mr. Trump that “based upon the information that has been provided to me,” all documents responsive to the subpoena were being returned after a “diligent” search.
Yet on Aug. 8, the F.B.I. found more than twice as many documents marked as classified than had been turned over in June, including some in Mr. Trump’s office. That fact, the Justice Department wrote, “calls into serious question the representations made in the June 3 certification” — which also included a claim that no copies had been made of any files — “and casts doubt on the extent of cooperation in this matter.”
The sequence of events raises the question of whether the two lawyers knowingly misled the Justice Department. If so, they could be charged with crimes like obstruction and making false statements. But they could defend themselves by saying they in turn had been lied to by someone else and so did not know the statements were misleading.
It is not clear whom Ms. Bobb was referring to — Mr. Corcoran, Mr. Trump, both, or someone else — when she qualified her statement with the phrase “based upon the information that has been provided to me.” Investigators may seek to ask her that. If Ms. Bobb were to single out Mr. Corcoran, the focus would shift to him.
Notably, if either of them were to say that Mr. Trump had assured them that no other documents marked as classified remained at Mar-a-Lago, that would create a conflict of interest, specialists said: Mr. Trump’s defense would likely be to deny he had said that. If such a clash arises, it is doubtful they could continue representing him as a matter of legal ethics.
Mr. Corcoran and Ms. Bobb did not respond to requests for comment.
In its filing late Tuesday, the Justice Department noted that Mr. Trump’s lawyers had not been as cooperative as they could have been at the June 3 meeting, relaying what it considered a suspicious interaction.
“Critically, however, the former president’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained,” the filing said.
The Justice Department’s account clashes with that of Mr. Trump’s legal team. A complaint filed on Aug. 22 and signed by Mr. Corcoran and two other lawyers describes Mr. Trump and his team as providing “complete cooperation.” The complaint also claims that after Mr. Bratt asked to inspect the storage room, investigators were escorted there, and once their inspection was completed, an F.B.I. agent said: “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.”
All this has increased scrutiny on what the lawyers said to each other and to Mr. Trump about how they were responding to the subpoena.
“If the Justice Department is going to pursue criminal charges, any prosecutor is going to want to have on the record the full picture of what happened, which will require the testimony of all the witnesses with the relevant knowledge — and that certainly includes lawyers here,” said Samuel Buell, a Duke University professor of criminal law and a former prosecutor.
Any attempt to subpoena the two lawyers for testimony and written communications about their discussions with Mr. Trump about the matter would immediately set off a legal fight over attorney-client privilege, legal specialists said.
In normal circumstances, prosecutors seeking evidence about an investigative target cannot subpoena that target’s defense lawyers and force them to testify or turn over documents about their client. Under attorney-client privilege, the confidentiality of such discussions and work is protected.
That privilege is meant to protect the rights of people who are in trouble over a past and already completed potential offense. People need to be able to talk candidly with their lawyers about what happened to understand their options. That would be impossible if whatever people admitted to their lawyers could be used against them as evidence in court.
But there is an exception. When attorney-client communications are part of continuing or future crimes, the privilege does not apply. If judges think there is sufficient evidence to trigger this “crime-fraud exception,” they will uphold a subpoena forcing the defense lawyers to provide evidence about what they and their clients said to each other.
There is another potential legal hurdle. If there is reason to believe that Mr. Corcoran, Ms. Bobb or both are at risk themselves of being charged with crimes like obstruction or lying to federal investigators, they would have a Fifth Amendment right against compelled self-incrimination.
As a result, neither could likely be compelled to testify before a grand jury about their interactions with Mr. Trump without a grant of immunity from prosecution at a minimum.
Alternatively, if prosecutors believe they already have enough evidence to charge them with crimes like obstruction or making false statements, the government could try to negotiate guilty pleas that include agreements to cooperate in return for leniency.
The Tuesday filing said that the F.B.I. — which also subpoenaed for footage from Mar-a-Lago surveillance cameras, and has been working with multiple witnesses — had evidence that someone had moved boxes out of a storage room before Mr. Corcoran conducted his search.
The publicly available record does not make clear whether Mr. Corcoran or Ms. Bobb knew that, or whether either or both of them knew that some documents marked as top secret were also in a desk in Mr. Trump’s office at the compound.
The search warrant listed three potential crimes: retaining national-security secrets without authorization, obstructing an official effort and concealing government records. At least two others would seem to arise from the search’s findings: disobeying a subpoena and making a false statement. But investigators pursuing any such charge need to show what a defendant personally knew about the matter.
If the Justice Department does subpoena Mr. Corcoran and Ms. Bobb, setting up a fight over attorney-client privilege, it will not be the first time that investigators have confronted such issues in an inquiry related to Mr. Trump.
In October 2017, during the Russia investigation led by the special counsel Robert S. Mueller III a judge ruled that the exception applied and upheld a subpoena requiring a lawyer for two top Trump campaign officials, Paul Manafort and Rick Gates, to testify about and provide records of their communications. The lawyer had signed letters on their behalf that contained false and misleading statements about their foreign lobbying.
And in March, a judge ruled that the House committee that is examining the Jan. 6, 2021, attack on the Capitol could subpoena Chapman University for the emails of John Eastman, a former law professor who supplied legal arguments to Mr. Trump supporting his attempts to overturn the election. Mr. Eastman claimed the emails were privileged, but the judge ruled that the exception applied because it was “more likely than not” that they involved obstruction.
The prospect that investigators may seek to obtain information from Mr. Corcoran, Ms. Bobb or both would almost certainly meet strenuous resistance from them and from Mr. Trump.
“Noises have already been made about attorney-client privilege,” Mr. Buell said, “so it’s guaranteed that is going to be a heavily litigated question.”
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