This article is taken from my Substack page: 

A massive development has occurred in the Trump investigation, one that has largely gone unnoticed due to the circus in the Manhattan Courthouse. But even with the files entirely sealed, the procedures and issues tell us a lot, and it’s something very big. Jack Smith could surely indict Trump today on at least one charge. But Smith must want much more, probably a lot more, and the courts have opened the door with jaw-dropping speed, speed that I’ve never seen before, nor have the attorneys consulted on MSNBC or CNN. The speed with which the decisions were made tells us a great deal.

On February 14th, Jack Smith filed a motion to subpoena Trump’s attorney, Evan Corcoran, to testify in the Mar-a-Lago files investigation. At the time, Corcoran objected based on attorney-client privilege.

Smith wants to question Corcoran about a statement he drafted in June 2022 that notified the FBI that Trump’s team had done a “diligent search” of boxes moved from the White House to Florida and that all government documents had been returned. Another attorney, Christina Bobb, signed the letter, adding the caveat, “to the best of my knowledge.” Of course, the FBI found over 100 boxes of government boxes, including 33 boxes of highly classified materials, in August of 2022.

Smith’s special prosecution team said that they could interrogate Trump’s former attorney because the attorney-client privilege did not apply. They cited the crime-fraud exception. The privilege cannot apply if either the target defendant or the attorney spoke in order to further a crime.

But for Smith to prove that the crime-fraud exception should apply and the judge should order Corcoran to testify, Smith’s team had to make a prima facie evidentiary showing to the judge that Trump used his attorney to further his crime. It was not a trial. Smith’s team submitted sufficient evidence to convince the judge to pierce the privilege. It is a high standard, one likely high enough to almost surely meet the standard for an indictment and that’s why I say that Smith could likely indict Trump right now.

But Smith’s not after an indictment… yet. He wants more.

Just last Friday, U.S. District Judge Beryl Howell, based in Washington, D.C., ruled that Smith sufficiently proved that Trump misled or used his attorney (Corcoran) to further his crime and that the attorney-client privilege should be pierced.

And then an even more remarkable thing happened.

Trump’s attorneys – not Corcoran – moved quickly on late Monday or early Tuesday morning to appeal the district court’s ruling. Astonishingly, the DC Circuit Court of Appeals gave Trump’s attorneys until midnight, 12:00 a.m. Wednesday to file their appeal and ordered Smith’s prosecutors to reply by 6:00 a.m Wednesday six hours later. The DC Circuit court upheld the ruling before noon on Wednesday and that Corcoran would testify in front of Smith 48 hours later, tomorrow, Friday.

The speed by which the appellate court worked. on an important matter that they had to get right (It’s a former president’s attorney-client privilege!), is so shocking that it leaves one searching for an explanation.

Clearly, Smith wants to know whether Trump himself told Corcoran that they had done that diligent search and nothing was found. If Trump was the one who conveyed the statement to Corcoran, then it’s almost self-proving that Trump obstructed justice. Smith likely already has evidence, perhaps from third parties, that Trump did, in fact, tell Corcoran. After all, something informed the judges that Trump used his attorney to further a crime. So it’s far more likely than not that Smith knows Trump told Corcoran that all the documents were gone. Smith wants the five star evidence and get the testimony from Corcoran himself.

At this point, Corcoran is almost surely desperate to testify, given that he doesn’t want to be sitting beside Trump in prison.

But let’s go back to the speed at which this is happening. Yes, it took one month, from February 14th to March 17th, to get the district court’s ruling, but that required the presentation of evidence and rebuttal evidence, which necessarily takes some time. And, if a party can prove that time is of the essence, and an important matter must be resolved, an appellate court can provide a two-week timetable, usually involving a hearing. But for something to be determined overnight, on the briefs, with no oral argument, on a matter involving a former president, Smith must have provided either the district and/or appellate court evidence of urgency so compelling that the appellate court felt an obligation to work all night and get the ruling out.

I can think of only one reason that a court would move that fast. This is responsible speculation because no one outside Smith’s team and the judges themselves knows. After acknowledging that I’m speculating, I think it’s fair to say that I believe Jack Smith provided – under seal – something that proved that our national security is still threatened in this matter and thus the need to complete the investigation as fast as possible.

To that end, we already know:

One: The FBI listed the Espionage Act as one of three suspected crimes underlying the search warrant, meaning they believed Trump might have been involved in “gathering, transmitting or losing” information related to defense with the intent the information could be used to harm US national security or interests.

Two: We know that the files included intelligence gathered about China and Iran’s missile defense (perhaps nuclear). These are critical documents directly related to U.S. national security, not Trump keepsakes. They are also highly valuable if presented to the right people. And these are only two examples. Smith knows all of them.

Three: Smith’s team has convinced a district court and an appellate court that Trump used Corcoran to further his crime, and they desperately need Corcoran to testify to Trump’s actions.

And Four: Smith’s team submitted something so compelling that the DC Circuit pulled an all-nighter so that Corcoran could testify by the end of the very same week.

The speculation that Trump and these files remain a National Security threat should not shock anyone. Think about what Trump could have told Corcoran, “Tell the FBI I got rid of all of them from Mar-a-Lago, I still have some stuff up in Bedminster…” this is but one example I pulled out of my ass. Smith may be seeking both an indictment and the basis for a new search warrant. And it wouldn’t be earth-shattering to learn that prosecutors believe that Trump remains a national security threat. This is the guy who wanted a back-channel to Russia through the Russian embassy. This is the family that the intelligence community adamantly refused to give Jared Kushner or Ivanka Trump Top Secret Clearances. They were considered too big a security risk. They only got their security clearances after a presidential order. The Trumps, all of them, have long been seen as national security threats.

Given that real possibility, there’s one last, very short thing we can glean from all this:

Corcoran isn’t the only person whose direct testimony could almost immediately indict Trump and would normally be protected by a privilege. Smith has subpoenaed Mike Pence in the January 6th matter. Both Pence and Trump asserted executive privilege. In this respect, executive privilege can be pierced in the exact same manner, proving that the conversations weren’t privileged because Trump was talking to Pence about furthering a crime, this time the January 6th crimes. You can expect almost the same pattern to play out concerning Pence.

Despite the fact that the “investigations” under Smith include January 6th and the Mar-a-Lago files, it doesn’t mean he has to file all charges on both matters on the same day. It appears to me that Smith wants to move as fast as possible on the files… again, national security, and then will repeat the process with Mike Pence. He will do it with urgency, obviously, but overnight?

No. I don’t think so.

Wow. Smith knows something very important.

****
[email protected], @JasonMiciak, SUBSTACK: TRUMP’S PROMISES TO IMMEDIATELY INSTILL FASCISM ARE BRUTALLY HONEST