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The Fourth Amendment of our Constitution addressed that unalienable right of privacy.

Paul G. Summers| Guest Columnist

The FBI is using Best Buys Geek Squad as informants

Does it violate the Fourth Amendment?

Time

Editor's note:This is a regular feature on issues related to the Constitution and civicswritten by Paul G. Summers,retired judge and state attorney general.

The U.S. Constitution is the supreme law of America. Amendments are part of the Constitution. The first 10 Amendments, or Bill of Rights, were submitted to the state legislatures in September 1789. The Bill of Rights was ratified in December 1791.

Amendment Four to the United States Constitution prohibits the government from unreasonable searches and seizures and provides that warrants shall issue based upon probable cause.

Amendment IV. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Before the Revolutionary War, Great Britain considered America to be a financial investment; and colonists had few rights, including rights against invasion of privacy into their own homes. Writs of assistance could easily be issued by the government for searching and seizing, irrespective of probable cause. If an official or agent just thought there was contraband in any place, they could seize and seize. The Fourth Amendment of our Constitution addressed that unalienable right of privacy.

Courts since 1791 have determined what is or is not probable cause as well as when warrantless searches and seizures are allowed. These rules apply to the states as well as the federal government.

For example, if a person is suspected of having committed a felony, he can be arrested without a warrant. As another example, if she is suspected of having committed a misdemeanor; and it was committed in the officers presence, she can be likewise arrested in most jurisdictions. If he or she is arrested properly, then searches incident to arrest are allowable.

Likewise, searches without warrants are allowed if contraband or evidence is in plain view; and the officer did not create the opportunity for a plain view exception. There are several warrant exceptions. But officials should procure a warrant from a neutral and detached magistrate if there is probable cause, and it can be done timely.

The Constitution and Amendments are the supreme law of the land. The judicial branch, headed by the Supreme Court, is the independent branch of our federal government.

Judges decide controversies on the rule of law. They act as checks and balances on abuse of power by any of the branches, whether by act or action. I have argued on behalf of my State in a capital murder case before the U.S. Supreme Court. I can attest to the solemnity of the highest court in our land.

The Courts decision on the Constitution is final. The Court hears about 2% of all applications for permission to appeal each year. All cases are important and decide issues the parties could not decide. The Courts decision is final, and it means much to some person or sometimes millions of people.

We shall continue in our next column with the Fifth Amendment. Please study the Constitution.

Paul G. Summers, lawyer, is a former appellate and senior judge; district attorney general; and the Attorney General of Tennessee. Raised in Fayette County, he resides in Holladay and Nashville.

See the original post here:
Why the Founding Fathers passed the Fourth Amendment to the ... - Tennessean

Former White House trade adviser Peter Navarro acknowledged that at least 200 to 250 records in his possession belong to the government. | Manuel Balce Ceneta/AP Photo

A federal appeals court panel on Wednesday rejected a bid by former Trump White House adviser Peter Navarro to retain hundreds of government records despite a judges order to return them promptly to the National Archives.

There is no public interest in Navarros retention of the records, and Congress has recognized that the public has an interest in the Nations possession and retention of Presidential records, the three-judge panel of the D.C. Circuit Court of Appeals concluded in a unanimous two-page order.

The Justice Department sued Navarro last year, seeking to reclaim hundreds of records contained in Navarros personal ProtonMail account that the government said should have been returned to the National Archives after the Trump administration came to an end in January 2021.

Navarro acknowledged that at least 200 to 250 records in his possession belong to the government, but he contended that no mechanism exists to enforce that requirement and that doing so might violate his Fifth Amendment rights against self-incrimination. Last month, U.S. District Court Judge Colleen Kollar-Kotelly rejected that claim, ordering Navarro to promptly return the records he had identified as belonging to the government.

But Navarro appealed the decision, rejecting the notion that the Justice Department had any legitimate mechanism to force him to return the records. And he urged the court to stay Kollar-Kotellys ruling while his appeal was pending. But the appeals court panel which included Judges Patricia Millett and Robert Wilkins, both appointees of President Barack Obama, and Judge Neomi Rao, an appointee of President Donald Trump rejected Navarros stay request.

Within minutes, Kollar-Kotelly put the squeeze on Navarro, ordering him to turn over the 200 to 250 records on or before Friday. She also ordered him to perform additional searches or presidential records that might be in his possession by May 8, with further proceedings scheduled for later in the month.

The flurry of filings is the latest twist in a saga that began when the National Archives discovered that Navarro had relied on a ProtonMail account to do official government business the result of a congressional investigation into the Trump administrations handling of the coronavirus crisis.

Navarro is also trying to fend off criminal charges for defying a different congressional investigation the probe by the Jan. 6 select committee into his role in strategizing to help Trump overturn the results of the 2020 election. He faces charges for contempt of Congress for defying a subpoena issued by the select committee, a case that has been repeatedly delayed amid battles over executive privilege and immunity for presidential advisers.

In its brief order rejecting Navarros stay, the appeals court panel concluded that returning the documents would not violate Navarros protection against self-incrimination.

Navarro has failed to articulate any cognizable Fifth Amendment injury, the panel wrote. Because the records were voluntarily created, and he has conceded both that they are in his possession and that they are the property of the United States, the action of physically returning the United States records to it will not implicate his [Fifth Amendment right].

It was not immediately clear whether Navarro would appeal the panels ruling.

Justice Department attorneys argued that despite Navarros claim, there is a method for the government to enforce its ownership interest in the records Navarro has acknowledged retaining a provision of the Washington, D.C., code. That statute, known as replevin, provides a mechanism for property owners to reclaim stolen materials even while court proceedings are pending.

Navarro has contended that this procedure was not contemplated in federal recordkeeping laws and had never been used to enforce the return of presidential records before. But the appeals court panel said he had not adequately demonstrated that the United States cannot proceed under the replevin statute.

However, the panel said it would not prejudge any additional arguments about that issue that might be made as the case proceeds.

Excerpt from:
Appeals court rejects Peter Navarro's bid to retain hundreds of ... - POLITICO

Over the past two months, one subject has repeatedly come up at the trial of five Proud Boys accused of sedition in connection with the storming of the Capitol: the unusual number of informants that the F.B.I. had in or near the group.

Even before the trial began, defense lawyers had suggested that the bureau had as many as eight informants in the far-right organization in the months surrounding Jan. 6, 2021. At least one of them from the groups chapter in Kansas City was in the throng of Proud Boys that marched on the Capitol that day.

On Wednesday, new court papers revealed that there was yet another informant in the Proud Boys orbit, one who became uncommonly close to people involved in the sedition trial.

The newly disclosed informant, a Texas-based activist named Jen Loh, took part in prayer meetings with some of the defendants relatives and had multiple contacts with the defendants themselves while they have been in jail. She was also in touch with some of the defense lawyers in the case, making what one of them, Nicholas Smith, has called a constant drumbeat of detailed inquiries, which Mr. Smith said he had ignored.

Carmen Hernandez, another defense lawyer working on the case, described what Ms. Loh has been doing as a surreptitious invasion of the Proud Boys defense team. She demanded this week that the government turn over any reports from other informants who may have gathered information on the defense.

Prosecutors have insisted that they never asked Ms. Loh whose real name is Jennylyn Salinas to cozy up to the defendants, their relatives or their lawyers. In fact, they said in court papers filed on Thursday, they cut ties with her two months ago after learning that she planned to appear at the sedition trial as a witness for one of the defendants, Enrique Tarrio, the Proud Boys former leader.

In an interview on Friday, Ms. Loh said that she had never spied on the Proud Boys or their lawyers and said that the F.B.I. never asked her any questions directly related to the trial that is now unfolding in Federal District Court in Washington. She also confirmed that she had parted ways with the bureau when she started talking with Mr. Tarrios lawyers.

Ms. Loh maintained that while she provided the government information about some of the defendants before the trial began, her interest in their families and legal situations was genuine.

Its hard to see people calling me a rat and a fed and things like that, she said. I think its sad that weve gotten so polarized in this country.

The use of informants in Jan. 6 investigations has been a simmering issue almost from the moment that the Justice Department started bringing charges against people involved in the Capitol attack. For more than two years, some in the right-wing media have sought to promote the idea that the bureau instigated the assault through proxies acting on the ground on its behalf.

But the defense lawyers in the Proud Boys trial while clearly disturbed by the number of informants in the group have largely dismissed the notion that the F.B.I. wielded anyone as an agent provocateur.

In the media, theres a swirling notion that undercover informants instigated Jan. 6, Mr. Smith, who represents the defendant Ethan Nordean, said several weeks ago during a pretrial hearing.

Thats not our belief, he went on, adding, I think its slander actually.

Instead, the lawyers have made a different point, arguing that the information the informants have provided to the government appears to be exculpatory and contradicts the central allegation in the case: that their clients went to Washington on Jan. 6 with a plan to storm the Capitol and disrupt the peaceful transfer of presidential power.

The defense, in fact, has upended the standard pattern and rather than attacking the informants has embraced them, issuing subpoenas to more than a half-dozen to appear as witnesses at the trial. But so far they have not managed to get any on the stand.

On Tuesday, for example, Judge Timothy J. Kelly quashed a subpoena the defense had given to Kenneth Lizardo, a Massachusetts Proud Boy who had what the judge described as a reporting relationship with the F.B.I. Judge Kelly ruled that Mr. Lizardo could avoid testifying at the trial because if he were called he planned to exercise his Fifth Amendment right against self-incrimination.

His situation suggests the extent of the bureaus network of informants.

On the day before the Capitol attack, Mr. Lizardo accompanied Mr. Tarrio (who was himself a former F.B.I. informant) to a meeting with Stewart Rhodes, the leader of the Oath Keepers militia, in an underground parking lot in Washington. At that time, Mr. Rhodess chief lieutenant in the Oath Keepers, Greg McWhirter, the groups vice president, was also working as an informant for the bureau.

While not much is known about the identities of the other informants in the Proud Boys, the bureau had placed secret sources in several chapters around the country, including in Cleveland and in Salt Lake City, according to a private log of internal F.B.I. messages obtained by The New York Times.

During the trial, defense lawyers have also mentioned an informant known only as Danny Mac, who once led a Proud Boys chapter in New Jersey. Matthew Walter, a former chapter president from Tennessee, told The Times last month that he had a relationship with the F.B.I. that lasted several months around the time of Jan. 6 and added that as many as 20 other members of the group did as well.

Ms. Loh said that she began working with the F.B.I.s office in San Antonio, Texas, in 2018 or 2019 after falling victim to an attack from what she described as activists from the leftist movement antifa. At first, she said, she gave the bureau what she believed was useful information on leftist protesters.

Soon, however, she began getting paid for her work. At that point, Ms. Loh, who once served as a top official in an organization called Latinos for Trump, started providing information to the F.B.I. on any type of domestic terrorism on the right or the left, she said.

More recently, according to the government, Ms. Loh has been active in assisting people charged in the Capitol attack in fund-raising efforts and protesting against their conditions of confinement. She also confirmed the governments contention that she engaged in discussions with one of the defendants family members about replacing a defense lawyer in the case.

The constant and unexpected emergence of informants has unsettled the defense team. At the court hearing on Thursday, several defense lawyers complained to Judge Kelly that they had no idea if there were more informants hiding in the wings.

Theres more C.H.S.s than there are defendants in this case, Sabino Jauregui, one of Mr. Tarrios lawyers said, using an abbreviation for confidential human source, the F.B.I. official term for an informant.

I asked my intern the other day if shes a C.H.S., he said.

See the rest here:
In Proud Boys Jan. 6 Sedition Trial, FBI Informants Abound - The New York Times

Takings

Ilya Somin |The Volokh Conspiracy|3.25.2023 5:40 PM

In its important decision in Knick v. Township of Scott (2019), the the Supreme Court reversed Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that made it almost impossible to bring takings cases against state and local governments in federal courts. Under Williamson County, a property owner who claimed the government has taken his property and therefore owed "just compensation" under the Fifth Amendment, could not file a case in federal court until he or she first secured a "final decision" from the relevant state regulatory agency and "exhausted" all possible state court remedies in state court. At that point, it was still usually impossible to bring a federal claim, because procedural rules preclude federal courts from reviewing most final decisions by state courts. In a forceful opinion for the Court, Chief Justice John Roberts denounced this "Catch-22" and emphasized that "[a] property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it." The owner does not have to first go to state court.

Access to federal court is crucial to protecting constitutional rights against violation by state and local governments. In some situations, state courts will not adequately protect those rights, and may even be part of the same political coalition as the state or local officials who violated those rights in the first place (a problem particularly likely to arise in the many states where judges are elected).

Unfortunately, a recent decision by the US Court of Appeals for the Fifth Circuit (which covers the states of Texas, Louisiana, and Mississippi) goes against the principles outlined in Knick and threatens to create a new Catch-22 keeping takings claims out of federal court.

In Devillier v. Texas, decided in November, a Fifth Circuit panel ruled that federal courts have no jurisdiction to hear takings claims against state governments because the Fifth Amendment doesn't create such jurisdiction, and there is no federal statute establishing it either. Here is the entirety of the opinion (minus footnotes):

The State of Texas appeals the district court's decision that Plaintiffs' federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the [S]tates through the Fourteenth Amendment does not provide a right of action for takings claims against a [S]tate, we VACATE the district court's decision and REMAND for further proceedings. The Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking; nothing in this description of Texas law is intended to replace its role as the sole determinant of Texas state law. As such, this Court lacks jurisdiction to review these claims.

[the text above is slightly modified from the court's original decision, as explained here (pg. 25)].

What the court says is simply false. The Fifth Amendment does indeed create a "direct cause of action" against state governments, no less than other provisions of the Bill of Rights do. Nothing in the text or original meaning of the Constitution suggests otherwise. In the footnotes, the panel cites AzulPacifico, Inc. v. City of Los Angeles, a 1992 Ninth Circuit reaching a similar conclusion. But Azul-Pacifico, a very short opinion that offers almost no analysis supporting its position, was decided prior to Knick, at a time when Williamson County was still in force and it was therefore permissible for courts to disfavor takings claims relative to other constitutional rights claims. Knick decisively rejected such theories, and the Fifth Circuit erred egregiously in failing even to cite Knick in its opinion.

Even worse, the Fifth Circuit ruling creates precisely the kind of Catch-22 that Knick forbids. Indeed, ir may be even worse! This case ended up in federal court in the first place, becauseafter the plaintiffs initially filed in state courtthe state of Texas removed the case to federal court under 28 U.S. Code Section 1441, which allows defendants to remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction."

Under the approach adopted here by the Fifth Circuit, takings claims against state governments cannot be brought in federal court. And if they are instead brought in state court, the defendant state can remove them to federal court and then force their dismissal! As Judge Andrew Oldham puts it in his dissent from the Fifth Circuit's March 23 denial of the plaintiffs' petition for an en banc rehearing (which, if granted, would have had the entire Fifth Circuit reconsider the panel decision), "[t]he panel decision renders federal takings claims non-cognizable in state or federal court."

This is actually even worse than the Williamson County regime, under which takings claims could at least be litigated in state court (though some lower courts did permit the kinds of removal shenanigans the Fifth Circuit blessed here). The federal district court ruling that the Fifth Circuit reversed effectively highlighted this dangerous implication of ruling in favor of the state, and specifically cited Knick, as well:

In considering the State's argument, it is important to think for a moment about the dramatic implications of such a rule. Under the State's view, it can take property from a private citizen without paying just compensation and the private citizen would be left without a remedy. Take an example. Person A owns a 20-acre vacant parcel. While Person A is on a five-year trip around the world, the State commandeers the property, constructs a state office building on the property, and utilizes the building on the propertyall without the permission of the property owner. When Person A returns home, the State tears down the building and returns the property to its original vacant state. This is a classic taking for which Person A is clearly entitled to be compensated. See Knick v. Township of Scott, 139 S.Ct. 2162, 2167 (2019) ("A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it."). But not so fast. Amazingly, the State maintains that Person A would have no federal constitutional remedy against the State because a Fifth Amendment takings claim can never be brought against a State under [42 USC] 1983. This thinking eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense. It is pretzel logic.

There is not, as the State suggests, some sort of "state exception" that excludes state governments from the reach of the Fifth Amendment's Takings Clause. The complete opposite is true. "Historically, the United States Supreme Court has consistently applied the Takings Clause to the states, and in so doing recognized, at least tacitly, the right of a citizen to sue the state under the Takings Clause for just compensation." Manning v. Mining & Minerals Div. of the Energy, Minerals & Nat. Res. Dep't, 144 P.3d 87, 90 (N.M. 2006) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency, 535 U.S. 302, 306-09 (2002); Palazzolo v. Rhode Island, 533 U.S. 606, 614-15 (2001); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-30 (1992)).

The plaintiffs have petitioned the Supreme Court to take the case. The Court should do exactly that. The justices need not even do much work, if they don't want to. They can just summarily reverse the Fifth Circuit, and endorse, by reference, the reasoning of the district court (technically, a magistrate judge's recommendation, which the district judge then adopted). If the Supreme Court lets this egregious decision stand, three state governments ruling over a total of some 36 million people, will be free to seize private property and then refuse to pay compensation, without fear of having their actions challenged in either state or federal court.

Two of the judges on the panel, Higginbotham and Higginson, filed concurring opinions to the Fifth Circuit's denial of rehearing en banc, in which they defend the panel decision in much more detail than the ruling itself did. Judge Higginbotham argues that the reasoning of Knick only applies to cases brought under 42 U.S.C. Section 1983, which applies to cases brought against "persons" who deprive the plaintiffs of their constitutional rights (previous precedent holds, wrongly in my view, that local governments qualify as "persons" under Section 1983, but states do not). But Knickclearly makes the more general point that takings claims deserve access to federal court on par with other constitutional rights ("A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it") and bars the creation of "Catch-22" rules that block such access. A Catch-22 rule that blocks access to both state and federal courts, as the Fifth Circuit decision does, is even more egregious, and even more obviously at odds with Knick.

Judge Higginbotham also advances various arguments to the effect that it is desirable to confine most takings cases to state courts, because of the latter's special expertise in property law issues. These types of arguments were rejected by the Supreme Court in Knick, and for good reason. I criticize them in some detail in my article on Knick (also available here).

Judge Higginson argues that the special circumstances of the incorporation of the Takings Clause against state governments justify the kind of double standard created by the panel ruling. He argues that, even if the Takings Clause, generally, was incorporated against state governments, the right to a damages remedy for "compensation" was not, and therefore can only exist if Congress enacts a specific statute requiring it. But this makes no sense. The right to "just compensation" is right there in the Takings Clause, and there is zero evidence that the Fourteenth Amendment somehow incorporates the rest of the Fifth Amendment against the states, but excluded this part.

Judge Oldham's dissent offers additional (mostly well-taken) criticisms of Judge Higginbotham's and Judge Higginson's opinions. He also outlines various procedural flaws of the original panel opinion. Among other things, the latter was surely wrong to dispense with so an important issue in such a cursory way.

The Oldham dissent does have a few flaws of its own. For example, Judge Oldham endorses the common, but fallacious, view that the Supreme Court incorporated the Takings Clause against the states in Chicago, Burlington & Quincy Railroad Company v. Chicago (1897). For reasons discussed in Chapter 2 of my book The Grasping Hand, this isn't true. In reality, this was just one of a number of late-19th century cases where the Supreme Court allowed property owners to bring takings cases against states and localities under the Due Process Clause of the Fourteenth Amendment.

Regardless, Judge Oldham and the district court are surely right about the bottom line, and the Supreme Court would do well to adopt the main elements of their reasoning.

NOTE: The plaintiffs in this case are now represented by the Institute for Justice, a public interest law firm with which I have longstanding ties, and for which I have written pro-bono amicus briefs in other property rights cases. But I do not have any involvement in this case. Back in 2001-2002, I clerked for Judge Jerry E. Smith, who is one of four Fifth Circuit judges who joined Judge Oldham's dissent from the denial of rehearing en banc. The litigation of this case began long after my clerkship ended.

See the original post here:
Supreme Court Should Take and Reverse Fifth Circuit Decision that ... - Reason

The behind-the-scenes legal fight over obtaining evidence from a lawyer who represented former President Donald J. Trump in the investigation into his handling of classified documents has brought into sharper view where the Justice Department might be headed with the case.

According to the wisps of information that have seeped out of sealed court filings and closed-door hearings, prosecutors believe they have compelling evidence that Mr. Trump obstructed the governments efforts to reclaim the sensitive records and may have even misled his own lawyers.

This theory of the case has not changed much since federal agents obtained a search warrant in August based on three possible crimes, obstruction being one of them. The search turned up hundreds of sensitive government records being kept at Mar-a-Lago, Mr. Trumps heavily trafficked compound in Florida, after his lawyers had earlier assured the Justice Department that all such documents had been returned.

Still, the more recent developments stemming from efforts to force testimony and other evidence from the lawyer, M. Evan Corcoran, in Federal District Court in Washington, indicate that prosecutors have continued to build a case and that the inquiry remains a serious threat to Mr. Trump.

On Wednesday, a federal appeals court weighed in on the matter, ruling that Mr. Corcoran had to give the government what is likely to be dozens of documents related to his work for Mr. Trump as well as return to a grand jury on Friday to answer questions he had previously sought to avoid with assertions of attorney-client privilege.

The appellate ruling effectively let stand the decision of a lower-court judge, Beryl A. Howell, who gave a blunt assessment of the case last week. In a sealed order issued on Friday upholding the crime-fraud exception to attorney-client privilege, Judge Howell noted that prosecutors in the office of the special counsel, Jack Smith, had made a prima facie showing that the former president committed criminal violations, according to people familiar with the decision.

The crime-fraud exception allows prosecutors to pierce attorney-client privilege when they have reason to believe that a client in this case the former president used legal advice or legal services in furthering a crime.

Most notably, in a lengthy memorandum of law that accompanied the ruling, Judge Howell, according to two people briefed on the matter, laid out damning assertions made by prosecutors that Mr. Trump knowingly deceived the government and caused Mr. Corcoran to misstate to prosecutors where the documents were being held at Mar-a-Lago.

The existence of Judge Howells order and memorandum was first reported by ABC News. Shortly after the ABC report appeared, Mr. Trumps campaign attacked it as Fake News and ILLEGALLY LEAKED.

There is no factual or legal basis or substance to any case against President Trump, Steven Cheung, a spokesman for Mr. Trump, said of Judge Howells ruling. The deranged Democrats and their comrades in the mainstream media are corrupting the legal process and weaponizing the justice system in order to manipulate public opinion because they are clearly losing the political battle.

How Times reporters cover politics.We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.

Mr. Smiths office is likely still far from making any charging decisions. And the arguments that prosecutors presented to Judge Howell about possible crimes committed by Mr. Trump have not faced the scrutiny they would in a venue like a trial, where the burden of proof is much higher.

Still, the accumulation of details emerging from the proceedings suggests that Mr. Smith and his team are drilling down on every scrap of evidence they can find in assembling an argument that Mr. Trump may have impeded a federal investigation. For their part, some of Mr. Trumps aides have stated plainly if privately that the government and, in their minds, Judge Howell see him as a criminal.

All this has taken place in spite of predictions from Mr. Trumps allies that the documents investigation would quietly blow away after President Biden was also found to have kept classified materials after his term as vice president. A special counsel, Robert K. Hur, is investigating Mr. Bidens handling of the documents.

Mr. Corcoran, who testified before the grand jury earlier this year, is set to appear before the grand jury again on Friday in compliance with rulings from both Judge Howell and the appeals court. According to two people familiar with the events, he is not intending to invoke his Fifth Amendment right against self-incrimination when he testifies, underscoring that he is not the target of the special counsels scrutiny.

In their initial motion to compel Mr. Corcorans testimony, prosecutors also sought to invoke the crime-fraud exception to get testimony from a second lawyer, Jennifer Little, who is based in Atlanta. Ms. Little represents Mr. Trump in the Fulton County, Ga., district attorneys investigation into his efforts to overturn his loss in that state in the 2020 election.

Prosecutors are interested in Ms. Little because she was one of the few criminal defense lawyers working directly with Mr. Trump when the Mar-a-Lago matter heated up at the Justice Department, according to two people briefed on the matter. She counseled Mr. Trump to be cooperative, the people said, and left the case soon after Mr. Corcoran was brought on by Mr. Trump.

Judge Howell ordered Ms. Little to testify before the grand jury in her recent ruling, the people briefed on the matter said. They added that Judge Howell said Ms. Little did not have to turn over a document she had sought to withhold from prosecutors.

Ms. Little and her lawyer did not respond to messages seeking comment.

The extraordinary back-and-forth in the past several weeks between Mr. Trumps lawyers, Mr. Corcoran and his lawyers, and Mr. Smiths prosecutors not to mention with multiple witnesses who are also Mr. Trumps lawyers, as well as all of their lawyers has turned the federal courthouse in Washington into a bustling hive of Trump-related inquiries.

The latest example came on Thursday when lawyers for Mr. Trump including Mr. Corcoran appeared before a new chief judge, James E. Boasberg, with lawyers for former Vice President Mike Pence. They were there to discuss some issues related to Mr. Pences testimony before a grand jury investigating Mr. Trumps efforts to overturn the 2020 election, an inquiry also being overseen by Mr. Smith, the special counsel.

Late last month, prosecutors under Mr. Smith filed court papers seeking to stop Mr. Pence and Mr. Trump from asserting claims of executive privilege to limit the scope of Mr. Pences testimony. Representatives for Mr. Pence have said the former vice president would also seek to pare back his testimony by invoking the speech or debate clause of the Constitution, which is intended to protect the separation of powers.

Judge Boasberg, after hearing arguments on both subjects, said he would issue a decision later, according to a person familiar with the matter.

Read this article:
Court Action Underscores Peril for Trump in Documents Investigation - The New York Times