Washington — Donald Trump’s attorney must testify before a federal grand jury in Washington, D.C., investigating the former president’s retention of documents with classified markings, a federal judge secretly ruled on Friday, according to two sources familiar with the proceedings. 

The attorney, Evan Corcoran, previously refused to answer questions from investigators about his conversations with Trump over attorney-client privilege concerns. Prosecutors in special counsel Jack Smith’s office wanted to ask Corcoran about an alleged call he had with Trump on June 24, 2022, around the time investigators were seeking to secure documents at Trump’s home and video surveillance tapes of Mar-a-Lago, a source previously told CBS news last week.

Smith’s team asked Chief Judge Beryl Howell to reject Corcoran’s claims of privilege and force him to testify against his client, Trump, on the basis that the attorney-client communications in question could have furthered criminal activity. Howell’s secret order only partially granted that request and ruled that the so-called “crime-fraud exception” be applied to Corcoran’s testimony on a specific set of questions, the sources said. 

Howell’s ruling indicates she accepted the Justice Department’s request that the so-called “crime-fraud exception” be applied to Corcoran’s testimony and will force him to comply with a subpoena. 

CNN first reported that Corcoran would be compelled to testify.

Trump is likely to appeal the ruling to a federal appeals court and to ask the lower court to pause the order while the issue is further litigated. It is not yet known when Corcoran would be required to testify. 

Corcoran — who appeared before a D.C. grand jury once before in the probe — has come under scrutiny for his role in Trump’s response to federal investigators as they sought to obtain records with classified markings allegedly taken from the White House to the former president’s Florida residence after he left office. In June 2022, as Justice Department officials were working to collect the missing records, prosecutors alleged in court documents that when they met with attorneys and representatives of the former president, they were given “a single Redweld envelope, double-wrapped in tape, containing the documents,” and were handed a signed declaration from a Trump representative declaring all known sensitive documents had been turned over. 

The execution of a search warrant in August revealed more documents with classified markings were still located in Trump’s Mar-a-Lago residence. Prosecutors have said they have reason to believe efforts were made to “obstruct” their investigation into how those sensitive records were able to leave White House grounds without permission from the National Archives. The alleged interference is also part of Smith’s investigation. 

Howell’s decision to deny Corcoran’s attorney-client privilege claims on Friday was likely her last as top judge and supervisor of all grand jury matters in Washington, D.C.’s federal courthouse. The 2016 Obama appointee’s term expired on Friday and she was replaced by another Obama-era judge, Judge James Boasberg. 

Boasberg, as the incoming chief judge, will have politically-charged legal issues of his own to decide, which likely include whether former Vice President Mike Pence must appear before another Smith grand jury investigation, this one  focused on the events of the Jan. 6, 2021 Capitol attack. 

Trump has claimed executive privilege over Pence’s testimony, arguing conversations between a sitting president at the time and his vice president should be shielded from scrutiny. 

Pence, too, has opposed the subpoena and said he plans to take a different legal tactic in an attempt to block his testimony, claiming instead that his role on Jan. 6 as president of the Senate in Congress would prevent him from having to comply with a subpoena under the Constitution’s Speech and Debate clause. 

Trump has lambasted the dual federal probes into his conduct at the end of his presidency, taking to his Truth Social account to criticize Smith and the Justice Department to proclaim his innocence. No one has been criminally charged in either of the special counsel probes. 

Attorney General Merrick Garland appointed Smith in November to oversee the Trump investigations after the former president announced his 2024 presidential candidacy. Another special counsel, former U.S. Attorney Robert Hur, was appointed earlier this year to investigate President Joe Biden’s own handling of sensitive records after documents with Obama-era classified markings were found in his D.C. office.

On Thursday, another Trump ally, former White House communications aide Margo Martin, testified before a Washington, D.C. grand jury in the classified documents probe, according to sources familiar with the matter. Other former White House officials and Mar-a-Lago employees, including a one-time culinary employee allegedly seen on security camera video appearing to move boxes of records within the Florida resort, have complied with subpoenas in recent months. 

Walt Nauta, the culinary employee, told investigators that the former president had directed him to move the boxes to a different location as the federal investigation was underway, an individual familiar with the investigation told CBS News.   

Howell has rejected many Trump-world claims of privilege in the ongoing special counsel probe, multiple sources tell CBS News, denying the former president’s legal strategy of working to prevent testimony on the grounds that he was president at the time in question. 

A spokesperson for the Justice Department declined to comment.