U.S. District Judge Aileen Cannon will rule on whether prosecutors in Donald Trump's classified documents case are allowed to use notes taken by the former president's ex-lawyer Evan Corcoran as evidence.
A previous decision from a Washington, D.C., judge found that special counsel Jack Smith was allowed to use the notes under the crime-fraud exception to attorney-client privilege, Newsweek reported.
The crime-fraud exception permits prosecutors to use evidence that is usually protected by attorney-client privilege if its use helps prevent crime.
According to the legal website Justia, "the client must have been in the process of committing a crime or planning to commit a crime," for the exception to apply.
Many of the crimes addressed by the exception include crimes that obstruct an ongoing investigation or prosecution, such as witness tampering or destroying evidence.
Trump's lawyers have requested Corcoran's notes be thrown out as evidence and a hearing is scheduled for Tuesday.
Former federal prosecutor and vocal Trump critic Joyce Vance told Newsweek that "Corcoran's notes include highly incriminating evidence of obstruction of justice by Donald Trump" that could be highly damaging to the former president's defense.
"They appear to confirm that Trump conspired with his co-defendants to keep boxes of classified documents at Mar-a-Lago hidden from Corcoran, so he could not coordinate their return to the government," she wrote in her Civil Discourse legal blog on Sunday. "Imagine being a former president, and the best argument you can muster is: Please keep prosecutors from using all this good evidence against me because it's really, really damaging."
During a hearing on Friday, Trump's legal team argued that the case should be dismissed because they say Smith's appointment was unconstitutional.
"The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States," Trump's defense attorneys argued. "As such, Jack Smith lacks the authority to prosecute this action."
Trump faces 40 federal charges of mishandling classified documents he retained and stored at his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House is January 2021. He stands accused of obstructing the efforts of federal authorities to retrieve them. The former president has denied any wrongdoing and pleaded not guilty to all charges.