The special counsel’s investigation into former President Donald J. Trump’s handling of classified documents has prompted a pitched behind-the-scenes legal battle, with a federal appeals court poised to weigh whether prosecutors have provided sufficient evidence of a crime to force one of Mr. Trump’s lawyers to testify to a grand jury and provide documents related to his work for the former president.
In an order late Tuesday, the U.S. Court of Appeals for the District of Columbia issued a temporary stay of a decision by a lower court last week that allowed prosecutors to pierce assertions of attorney-client privilege and compel M. Evan Corcoran, who has been representing Mr. Trump in the documents investigation, to answer questions before a grand jury.
Lawyers for Mr. Trump had asked for the stay earlier on Tuesday, asking the appeals court to put on hold the ruling by the lower court judge, Beryl A. Howell, as they sought to reverse parts or all of her decision.
In her order on Friday, Judge Howell, who sits in Federal District Court in Washington, also told Mr. Corcoran that he had to give the government a trove of documents connected to the legal work he did for Mr. Trump, according to a person familiar with the matter.
The appeals court’s order issuing a stay contained a hint of what lawyers for Mr. Trump may be seeking to accomplish by pausing Judge Howell’s ruling.
Understand the Trump Documents Inquiry
The Justice Department is conducting a criminal investigation into Donald Trump’s handling of classified files after he left office.
The appellate order asked Mr. Trump’s lawyers to “specify each document” in papers to be submitted before midnight on Tuesday. That suggests that Mr. Trump’s appeal is, at least in part, geared toward reversing the portion of Judge Howell’s ruling that forced Mr. Corcoran to hand over written materials to prosecutors investigating the case.
Like all matters involving a grand jury, the appellate filings were submitted under seal and bore no public mention of Mr. Corcoran or any of the underlying issues in the case. Setting an unusually aggressive schedule, the appeals court ordered the government to respond to Mr. Trump’s request for a stay by 6 a.m. on Wednesday. Prosecutors complied, filing a 6,455-word submission before dawn.
The litigation surrounding Mr. Corcoran is important because it centers on a provision of the law known as the crime-fraud exception, which allows prosecutors to work around attorney-client privilege when they have reason to believe that legal advice or legal services have been used in furthering a crime.
Prosecutors in the office of the special counsel, Jack Smith, had cited the crime-fraud exception when they asked Judge Howell last month to force Mr. Corcoran to return to the grand jury and answer more questions about his work for Mr. Trump. In his first grand jury appearance, Mr. Corcoran declined to respond to some of the government’s queries by making assertions of attorney-client privilege.
In her decision to send Mr. Corcoran back to the grand jury, Judge Howell found that Mr. Smith’s office had met the threshold for invoking the crime-fraud exception. It remained unclear, however, what crime Judge Howell believes might have been committed — or who might have committed it.
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ABC News reported on Tuesday that in her decision last week, Judge Howell said that prosecutors had produced “sufficient” evidence to show that Mr. Trump had “intentionally concealed” the existence of additional classified documents from Mr. Corcoran.
Mr. Trump’s campaign quickly shot back, issuing a statement, saying, “Shame on Fake News ABC for broadcasting ILLEGALLY LEAKED false allegations from a Never Trump, now former chief judge, against the Trump legal team.”
Among the subjects that the Justice Department has been examining since last year is whether Mr. Trump or his associates obstructed justice by failing to comply with repeated demands to return a trove of government materials he took with him from the White House upon leaving office, including hundreds of documents with classified markings.
In May, before Mr. Smith took over the investigation as a special counsel, federal prosecutors issued a subpoena for any classified documents still in Mr. Trump’s possession — a move taken after he voluntarily handed over an initial batch of records to the National Archives that turned out to include almost 200 classified documents.
In response to the subpoena, Mr. Corcoran met with federal investigators in June and gave them another set of documents, more than 30 of which carried classification markings. He then drafted a statement for another lawyer to give to the Justice Department saying that a “diligent search” had been conducted at Mar-a-Lago, Mr. Trump’s club and residence in Florida, and that no more classified materials remained there.
In August, F.B.I. agents armed with a warrant searched Mar-a-Lago. The search yielded three classified documents in desks inside Mr. Trump’s office, with more than 100 documents in 13 boxes or containers with classification markings in the residence, including some at the most restrictive levels.
About three weeks after Mr. Corcoran’s meeting with investigators in June, federal prosecutors issued another subpoena — this one for surveillance footage from a camera near a storage room at Mar-a-Lago. Among the subjects that Mr. Smith’s office wants Mr. Corcoran to testify about is a phone call he had with Mr. Trump around the time the subpoena for the video footage was issued, according to a person familiar with the matter.
Prosecutors are also interested in two men who were caught in the surveillance footage moving boxes from the storage room at Mar-a-Lago, according to two people familiar with the matter. One of the men was Waltine Nauta, a White House aide who went to work for Mr. Trump in Florida. The other was a worker at Mar-a-Lago.
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