Washington — Special counsel Jack Smith's office may not have fully reviewed thousands of pages of records turned over by former New York City Police Commissioner Bernard Kerik before seeking an indictment of former President Donald Trump Tuesday, says Kerik's attorney, Tim Parlatore.

Kerik had turned over the documents to Smith as part of the federal investigation into efforts to stop the transfer of presidential power after the 2020 election. In a 45-page indictment unsealed Tuesday, Trump is accused of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights. He is expected to be arraigned and enter a not guilty plea Thursday.

The documents were submitted to Smith on July 23, according to emails reviewed by CBS News. A source close to Kerik's legal team said at the time that they believed the records, which include sworn affidavits from people raising concerns about the integrity of the 2020 presidential contest, show there was a genuine effort to investigate claims of voter fraud in the last election.

In an Aug. 2 email to Parlatore, reviewed by CBS News, a special counsel's office prosecutor requested "responsive documents as to which the Trump campaign is no longer asserting a privilege," referring to the Kerik records Parlatore said he previously provided.

Parlatore said he was "stunned" when, after the indictment came down, the prosecutor contacted him asking for the records he said he had already provided. Parlatore said the "records are absolutely exculpatory."

"They bear directly on the essential element of whether Rudy Giuliani, and therefore Donald Trump, knew that their claims of election fraud were false," Parlatore said. "Good- faith reliance upon claims of fraud, even if they later turn out to be false, is very different from pushing fraud claims that you know to be false at the time."

Parlatore told CBS News last week he expected Kerik to be interviewed by investigators "soon," but that has not yet happened. Parlatore was among the key lawyers working for Trump in the Justice Department's investigations into the former president, but left the legal team in May.

Trump ally Bernard Kerik cooperating with special counsel 04:32

A spokesperson for the special counsel declined to comment Thursday when asked if they had reviewed the material.

"It may have been an oversight," former federal prosecutor Scott Frederickson told CBS News. "Kerik may not be a primary witness to the case. I tend to think they (the special counsel) are gathering evidence for discovery in this case, and may not have been essential to the indictment. Discovery is a critical stage, and the special counsel wants to be sure all materials are shared."

CNN was first to report in late July that Kerik had given Smith's team his materials.

Despite the allegations about election irregularities, dozens of court challenges seeking to invalidate the results from key battleground states were tossed out, and all 50 states certified their election results.

Kerik served as police commissioner under then-New York City Mayor Rudy Giuliani from 2000 to 2001 and is an ally of former President Donald Trump's. He and Giuliani worked together on an effort to identify widespread voter fraud in the 2020 election. Kerik was sentenced to four years in prison in 2010 after pleading guilty to eight felonies involving tax fraud and obstruction, and Trump pardoned him a decade later.

The tranche of documents, reviewed by CBS News, provided to Smith include emails between Kerik and a range of Trump lawyers, consultants and allies. Among those who received the messages were Sidney Powell and Jenna Ellis, conservative lawyers who pushed the unverified claims of fraud, as well as members of Trump's campaign, including advisers Jason Miller and Boris Epshteyn.

The batch CBS News reviewed includes communications with former White House chief strategist Steve Bannon and Trump's former national security adviser, Michael Flynn. Bannon was indicted in 2020 for allegedly defrauding donors to an online fundraiser before being pardoned by Trump in the final hours of his presidency. Bannon has since been convicted on contempt of Congress charges. In November 2020, Trump pardoned Flynn, who twice had pleaded guilty to charges of lying to the FBI. Bannon was recently subpoenaed by the special counsel, according to two sources familiar with the communication, but it is unclear if he has met with investigators.

The records include an email sent from Georgia Republican Party chair David Shafer to Kerik, an aide to Giuliani, Donald Trump Jr., the former president's eldest son, and Kimberly Guilfoyle, an adviser to Trump's campaign.

The material reviewed by CBS News also includes business information related to Dominion Voting Systems, an electronic voting company that found itself at the center of baseless claims the election was rigged against Trump. Dominion filed a defamation lawsuit against Fox News and its top on-air personalities, arguing the network knowingly spread false information about its role in the 2020 election. The two parties reached a settlement agreement in April ending the dispute, and Fox agreed to pay Dominion $787.5 million.

Smith was appointed in November by Attorney General Merrick Garland to oversee the Justice Department's investigation into the efforts to stop the transfer of power after Trump lost the election and the certification of Electoral College votes on Jan. 6, 2021. The counting of state electoral votes by Congress was interrupted when a mob of Trump's supporters breached the U.S. Capitol building, leading law enforcement to evacuate lawmakers and then-Vice President Mike Pence, who was presiding over the proceeding.

Trump has denied any wrongdoing related to events after the November 2020 election and leading up to the Jan. 6, 2021, Capitol attack. He has claimed the investigation is a "witch hunt" pursued by the Justice Department. 

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  • Donald Trump
  • Bernard Kerik
  • Jack Smith
Catherine Herridge

Catherine Herridge is a senior investigative correspondent for CBS News covering national security and intelligence based in Washington, D.C.

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