Judges Michelle Childs and Florence Pan, nominated by President Biden to the US Court of Appeals for the DC Circuit, were the majority on a three-judge panel that ordered a Trump lawyer immediately provide Special Counsel Jack Smith specific documents concerning Smith’s probe of Trump’s mishandling of classified records after he left office. The brief order was issued on March 22, 2023.
What’s the Background of the Court’s Action and the Case?
The case is part of the ongoing probe by Special Counsel Smith concerning classified documents found at Donald Trump’s retreat in Mar-a-Lago after the end of his presidency. Last June, after issuance of a Justice Department subpoena, Trump ;lawyer Evan Corcoran turned over more classified records and reportedly drafted a statement claiming that all classified records had now been returned to the government. More such records were found, however, raising serious questions about Trump and his team’s mishandling of classified documents and possible attempts to obstruct the DOJ probe.
Accordingly, Special Counsel Smith sought documents and testimony from Corcoran that ordinarily would be protected by attorney-client privilege, but according to Smith, should be made available because there was “evidence suggesting Trump may have misled his own attorneys” and the “crime-fraud exception” to attorney-client privilege applies. In a sealed order on March 17, DC District Judge Beryl Howell agreed with Smith and ordered that Corcoran turn over the requested documents and testify. Trump immediately appealed and tried to get Judge Howell’s order blocked during the appeal.
How did the DC Circuit rule and why is it important?
After a very short stay so the parties could submit briefs, the panel including Judges Childs and Pan rejected the Trump delay request. Instead, they issued a brief order directing Corcoran and the parties “to comply with the district court’s March 17, 2023 order to produce documents.” The appeal will continue, with briefs due in May.
Importantly, with no hold on Judge Howell’s order, prosecutors can review the documents even as the appeal continues, avoiding the very delay that the Trump team sought. There are also unconfirmed reports that Corcoran will testify shortly before a grand jury and answer questions that he previously refused to answer on the issue. Reports also indicate that the Trump team will not seek to block the Howell and DC Circuit orders in the Supreme Court.
The decision is thus very important because it helps ensure that the special counsel probe concerning classified documents retained by Trump will proceed expeditiously and will not be delayed. It is a significant development in ongoing efforts to secure accountability and justice with respect to former President Trump. The ruling also provides another illustration of the importance of promptly confirming fair-minded judicial nominees by President Biden like Judge Childs and Judge Pan.