Judge approves 'crime fraud exception' in special counsel probe of Trump classified documents

WASHINGTON — Special counsel Jack Smith’s office presented sufficient evidence to establish that former President Donald Trump committed a crime through his attorneys, a U.S. district judge ruled Friday night, a source briefed on the proceedings confirmed to NBC News on Wednesday.

U.S. District Judge Beryl Howell, based in Washington, D.C., wasn’t ruling on whether Trump was guilty of a crime, but was making a decision about whether his attorney could be compelled to testify.

As a result of the decision, Howell ruled in favor of applying the “crime fraud” exception, which would let prosecutors sidestep protections afforded to Trump lawyer Evan Corcoran through attorney-client privilege. Howell also ruled in favor of ordering Corcoran to testify before the federal grand jury. The development was first reported by ABC News.

Trump’s legal team has appealed the ruling, the source said.

Since that decision on Friday, the Court of Appeals for the D.C. Circuit stayed the ruling, and both sides have filed briefs to the appeals court on an accelerated schedule, according to a sealed docket that appears to correspond to the case.

The Department of Justice declined to comment, and Corcoran did not respond to NBC’s requests for comment.

Smith is the special counsel Attorney General Merrick Garland appointed last November with investigating Trump’s handling of classified documents and his role in the Jan. 6 insurrection.

NBC News had previously reported in mid-February that Smith was seeking to compel Corcoran to testify.

Corcoran had instructed another Trump lawyer, Christina Bobb, to sign a written statement in June asserting to Justice Department officials that a diligent search for classified documents had turned up no additional material. That was in response to a grand jury subpoena. The assertion, however, was not true, as the FBI discovered in August when it found around 100 classified documents in its search of Mar-a-Lago.

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