Case 9:23-cr-80101-AMC Document 567 Entered on FLSD Docket 05/21/2024 Page 20 of 29
under governing authority. Cf. In re Grand Jury Proc., 142 F.3d 1416, 1428 (11th Cir. 1998) (after
attorney is compelled to provide evidence to grand jury, defendant can seek suppression at trial).
The crime-fraud exception, where it applies, “removes the ‘seal of secrecy’ from attorney-
client communications or work product materials.” Drummond Co., Inc. v. Conrad & Scherer,
LLP, 885 F.3d 1324, 1335 (11th Cir. 2018) (quoting United States v. Zolin, 491 U.S. 554, 563
(1989)). The proponent of the exception (here, the Government) must make a two-part showing.
See, e.g., In re Grand Jury Subpoena, 2 F. 4th at 1345. “First, there must be a prima facie showing
that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel,
that he was planning such conduct when he sought the advice of counsel, or that he committed a
crime or fraud subsequent to receiving the benefit of counsel’s advice.” In re Grand Jury
Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987). Second, there must be a showing
that the attorney-client communications “further[ed]” or were “closely related” to “the criminal or
fraudulent activity.” Id. at 1226. This standard applies “in the same way” to attorney work-product
as it does to attorney-client communications. Cox v. Administrator United States Steel & Carnegie,
17 F.3d 1386, 1422 (11th Cir. 1994). The record here easily satisfies both prongs.
1. The Evidence Readily Establishes a Prima Facie Showing of a Crime
The requirement of a prima facie showing “is satisfied by a showing of evidence that, if
believed by a trier of fact, would establish the elements of some violation that was ongoing or
about to be committed.” In re Grand Jury Subpoena, 2 F.4th at 1345 (quotation marks omitted).
The “prime facie showing must only have some foundation in fact.” Id. For example, prior to an
2 The attorney-client privilege attaches to “communications made in confidence by a client
to an attorney for the purposes of securing legal advice or assistance.” In re Grand Jury Subpoena,
2 F.4th at 1345 (quotation marks omitted). The attorney work-product privilege applies to material
obtained or prepared by counsel in the course of carrying out their work in anticipation of litigation.
Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1334-35 (11th Cir. 2018).
18

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A breakthrough diplomatic deal between Washington and Riyadh is “pretty much there” but a broader pact involving Israel hinges on “a credible path” towards the creation of a Palestinian state, a senior US official has said.

The US had made significant progress in talks with the kingdom over American help on defence and a civilian nuclear programme, the US official said, and the countries had a “near final set” of bilateral agreements in place.

The discussions are part of US efforts to secure a grand bargain that would include Saudi Arabia and Israel normalising their diplomatic relations — but depends on Israel’s willingness to grant concessions to the Palestinians.

The seven-month war between Israel and Hamas in Gaza must also wind down before a final three-way deal was agreed, US officials and analysts said.

“We now have a near final set of arrangements, which would be the bilateral elements of this deal, and we really believe the Saudi deal is pretty much there,” the senior official said.

“But there are elements of it, including a credible pathway for the Palestinians and also some other elements, that would still have to be completed.”

The official added: “The crisis needs to recede to open up space for this.”

The US comments come just days after national security adviser Jake Sullivan held talks with Saudi Crown Prince Mohammed bin Salman in Riyadh and Israeli Prime Minister Benjamin Netanyahu in Jerusalem.

A grand bargain between the three countries had initially appeared doomed after October 7, when Hamas’s deadly attack on Israel sparked Israel’s retaliatory war in Gaza, which has killed more than 35,000 people, according to Palestinian officials, and left hopes for progress on Palestinian statehood — a component of the trilateral deal — in peril.

Netanyahu, who heads the most far-right government in Israel’s history, has repeatedly ruled out any concessions to the Palestinians or towards establishment of an independent Palestinian state.

On Tuesday, the International Criminal Court’s prosecutor announced that he was seeking an arrest warrant for Netanyahu, as well as some leaders of Hamas, for alleged war crimes.

US officials have made clear that any deal also hinges on securing a pause in fighting in Gaza. A focus of Sullivan’s meetings in Israel was getting dormant talks over a ceasefire in exchange for the release of Israeli hostages held by Hamas “back on track”, the official said.

Whether Israel expands its offensive on Rafah, the southern Gazan city where more than 1mn people had sought sanctuary, would play a role in the ceasefire talks.

More than 800,000 Palestinians have fled Rafah after Israel launched an offensive on the city this month, despite US opposition to an assault on such a densely populated area. Israel also took over the Gazan side of the Rafah crossing with Egypt, choking off a critical entry point for humanitarian aid into the besieged strip.

“Rafah may play into this, it does change the equation quite a bit and there may be some opportunities for getting the hostage deal back on track,” the senior official said.

US President Joe Biden has paused shipments of 2,000lb bombs and has threatened to withhold them fully if Israel goes ahead on a full-scale invasion of Rafah. After the meetings in Israel, the Biden administration felt that Israel had taken into account many of its concerns, the official said.

“We’re not here to greenlight Israeli military operations,” the senior official said. “It’s fair to say I think the Israelis have updated their plans, they’ve incorporated many of the concerns that we have expressed.”

The US and Israel also had a detailed discussion about how to transition to a stabilisation phase in the fighting and offered its resources to help track down Hamas’s leader in Gaza, Yahya Sinwar, the mastermind behind the October 7 attacks.

A protestor attends a Women’s March rally in Phoenix, Arizona in 2022.

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Plenty has happened with abortion access in the nearly two years since the Supreme Court overturned Roe v. Wade.

State laws have been changing constantly, new bans have taken effect, and there have been a slew of lawsuits and ballot measures.

All Things Considered host Mary Louise Kelly sat down with NPR’s reproductive rights correspondent Elissa Nadworny, and Selena Simmons-Duffin, who covers health policy at NPR, to examine the state of abortion.

There are total bans on abortion with very limited exceptions in 14 states. A few more states have six-week bans.

“Florida was the most recent place for this [six-week ban] to take effect. There are states like Nebraska that ban abortion after 12 weeks. In Arizona, it’s 15 weeks. More than half of the states have restrictions. And in those states, the number of abortions has dropped drastically,” Nadworny said.

But despite that trend, the overall number of abortions in the U.S. has actually gone up — due in part to the growing accessibility of telehealth appointments that can provide medication abortions.

You’re reading the Consider This newsletter, which unpacks one major news story each day. Subscribe here to get it delivered to your inbox, and listen to more from the Consider This podcast.

What voters want

When it comes to the ballot, Nadworny says abortion rights has been a winning issue.

“Nationally, polling shows 6 in 10 Americans say abortion should be legal in all or most cases, but that can vary by state,” she said. “But since Dobbs, voters in six states have weighed in on constitutional amendments on abortion. Voters chose access to abortion each time.”

Four states — Colorado, Florida, Maryland and South Dakota — will be voting on the right to an abortion in the upcoming elections. Six more states, including Arizona and Missouri, are working to get it on the ballot.

People gather at Utah’s state capitol in 2022 after the leaked draft opinion by Supreme Court Justice Samuel Alito suggested that the court was poised to overturn Roe v. Wade.

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Voters this fall may also be reacting to what they’ve seen when their access to reproductive healthcare becomes limited.

In states with more restrictive bans, like Idaho, dozens of OB-GYNs have left the state, according to one doctor who spoke to NPR. And three maternity wards have closed since the state’s abortion ban took effect. Recruiting problems are widespread for hospitals that are operating in states with abortion bans.

What could change

Simmons-Duffin says that while abortion access is getting rolled back in some states, it is gaining more protections and funding in others. When Roe v. Wade was in place, there were lots of restrictions and regulations about when and how the procedure could be performed.

“Some states like Michigan, Colorado, Minnesota, California and others have made moves to undo some of those regulations,” she said. “They’re getting rid of things like waiting periods and gestational limits,” Simmons-Duffin said.

“They’re allowing more types of providers like nurse practitioners to provide abortions. They’re training more providers on abortions. Some states have stockpiled Mifepristone, one of the medicines that can be used for abortion, in case access is curtailed in the future.”

Simmons-Duffin added that some places, like New York City, have made abortion hubs part of the health department. “So you can call a number and find out where to get an abortion and how to get funding to cover the costs,” she said.

Meanwhile, there are still two major decisions on abortion pending before the Supreme Court that are set to be announced next month:

“Both of these decisions will be coming down in early summer, just a few months before the election. So regardless of what the justices decide, it’s going to catapult abortion back into the headlines at a key time for voters,” Simmons-Duffin added.

For the full discussion on abortion in the U.S., listen to the episode of Consider This by tapping the play button at the top of the page.