Suspicions In Mar-A-Lago Case Confirmed

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

Unpacking The Trump Classified Docs News

I would hope by now it’s obvious to regular readers that I’m trying to use Morning Memo to bring together the scattershot incremental developments in the various Trump investigations into a coherent narrative.

The challenge for readers is that the federal probes of Trump are largely operating under the veil of grand jury secrecy. Especially after the bizarro special master review in the Mar-a-Lago classified docs case was shut down by an appeals court, the probes have been mostly underground. Reporters occasionally penetrate the veil of secrecy and get tidbits about who has been testifying, what they’ve been asked about, and other nuggets that in isolation can be confusing, misleading, or incomplete.

Case in point: We learned Friday that two Trump lawyers appeared before the DC grand jury investigating the Mar-a-Lago case (yesterday CNN learned of a third). Note it’s “appeared” not “testified.” That’s because it wasn’t clear whether they’d actually answered questions. The obvious out for them would be attorney-client privilege. The suspicion, however, was that Special Counsel Jack Smith was preparing to do an end run around attorney-client privilege using one of the exceptions, in particular the crime-fraud exception. Now that’s been confirmed in new reporting from the NYT and others.

It appears Trump lawyer Evan Corcoran answered some but not all of the grand jury’s questions, and cited attorney-client privilege in refusing to answer others. Smith is now seeking court approval to pierce the attorney-client privilege. I suspect it’s not on the grounds that Corcoran himself was a party to Trump’s crimes but rather an instrument of those crimes.

Among the many reasons this is significant news:

• Trump used multiple lawyers to interact with the National Archives, FBI, and Justice Department and if they’re compelled to testify about those interactions it opens up new avenues of potentially explosive evidence deeply damaging to the former president.
• It suggests Smith is in the later stages of obtaining the evidence he needs to make a charging decision, as this former Mueller prosecutor notes:

• A “win” by Smith in the attorney-client privilege dispute would mean a federal judge has found sufficient evidence of a crime involving Trump and his lawyers to dispense with the privilege, itself a notable conclusion.

What’s Up With Boris Epshteyn?

One final point that is worth having on your radar. The NYT keeps noting that Smith is paying a lot of attention to Trump attorney Boris Epshteyn. I don’t want to get ahead of the reporting, but let’s just say Epshteyn is being treated in their coverage in a different category than the other Trump lawyers, who seemed to be instruments of Trump’s scheming. The suggestion here is that Epshteyn was somehow more than an instrument:

Prosecutors overseeing the documents investigation have also been asking witnesses questions about Boris Epshteyn, who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump, according to multiple people briefed on the matter. It was Mr. Epshteyn who first brought Mr. Corcoran into Mr. Trump’s orbit.

At least three lawyers have sat for interviews with the Justice Department during which questions about Mr. Epshteyn were asked — among them Ms. Bobb and, more recently, Alina Habba, people with knowledge of the matter said. A third lawyer close to Mr. Trump, Jesse Binnall, has also spoken with prosecutors about Mr. Epshteyn, the people said.

…

But prosecutors are asking questions indicating they’re interested in whether Mr. Epshteyn was trying to improperly influence witness testimony, the person briefed on the interviews said.

Reax To Pence Subpoena Fight

Legal experts and others spent Tuesday grappling with the argument former Vice President Mike Pence is expected to raise to resist complying with a federal grand jury subpoena in the Jan. 6 investigation:

Harry Litman: How Mike Pence’s flawed argument against a subpoena just might get him what he wants

Aaron Blake: What it means for Pence to fight his subpoena — politically and legally

Pence is expected to address the subpoena from Special Counsel Jack Smith today at a not-yet-campaigning appearance in Iowa.

Appeals Court Upholds $110,000 Contempt Sanction Against Trump

I forgot about this one. Last April, a state court judge in New York found Donald Trump in contempt of court for failing to comply with discovery orders in the NY AG’s fraud investigation of his business.

You may remember that the judge imposed sanctions at the time of $10,000 a day. Eventually the judge ordered Trump to pay the AG a total of $110,000 for his contempt. In the meantime, NY AG Tish James filed a $250 million civil fraud lawsuit against Trump, his adult children and the Trump Org.

Yesterday, an appeals court upheld the contempt sanction.

What To Do About Barr And Durham?

Neal Katyal: Under Trump, Barr and Durham Made a Mockery of the Rules I Wrote

DiFi Heads For The Exit

Dianne Feinstein’s Senate career is ending on a sad note.

At 89, her declining vigor has been a painful revelation to Senate colleagues and supporters, as documented in numerous stark accounts in recent months. She made her decision not to run for re-election in 2024 official Tuesday, but only after prominent House Democrats like Adam Schiff and Katie Porter had already launched their campaigns for her California Senate seat.

Feinstein’s remarkable career was largely shaped by her fierce determination, sharp questioning, and toughness. It’s hard to see it end this way, with a wince-inducing encounter with reporters on the Hill in which Feinstein didn’t seem to know that her office had already sent out the announcement that she’s not running again.

Merika!

Emma Riddle, 18, has now survived shootings at her high school and at her university.

Close Call?

There’s a lot going on in this new Politico report, with critical caveats and hedges and nuance, so rather than paraphrasing it, let me just give you a taste and encourage you to read the whole thing:

Hackers linked to Russia got very close to being able to take a dozen U.S. electric and gas facilities offline in the first weeks of the war in Ukraine, the head of a top cybersecurity company warned Tuesday.

Robert M. Lee, the founder and CEO of Dragos, which helps companies respond to cyberattacks, said hackers with a group Dragos calls “Chernovite” were using a malicious software to try to take down “around a dozen” U.S. electric and liquid natural gas sites.

“This is the closest we’ve ever been to having U.S. or European infrastructure, I’d say U.S. infrastructure, go offline,” Lee told reporters in a briefing. “It wasn’t employed on one of its targets, they weren’t ready to pull the trigger, they were getting very close.” Lee declined to offer details on what prevented the attack from succeeding, but said it was halted by a coalition of U.S. government and cyber industry groups.

George Santos, Mitt Romney, And The Loss Of Shame

NPR: When politicians have no shame, the old rules don’t apply

Chumming The Right-Wing Waters

Oh, look, it’s James Rosen, most recently of Newsmax, doing his schtick: