Former President Donald Trump has been ordered by U.S. District Judge Tanya Chutkan to declare whether he plans to argue that he was acting on the advice of his lawyers in his D.C. election subversion case. The judge partially granted a motion from special counsel Jack Smith’s team, which requested Trump to disclose whether he intends to use the advice-of-counsel defense. This defense is when a defendant claims they relied in good faith on the advice of their attorneys.
Smith’s office pointed out in a filing last month that several Trump lawyers have publicly stated that Trump was acting on their advice. They argued that invoking this defense in court would waive attorney-client privilege for all communications related to the defense. As a result, the government would be entitled to additional discovery and could conduct further investigation, leading to potential litigation and briefing.
While federal rules do not explicitly require advance notice of the advice-of-counsel defense, Judge Chutkan wrote in her order on Wednesday that some district courts have concluded they have inherent authority to order defendants to provide advance notice. This is to avoid disruption and delay caused by waiting until trial to invoke the defense and comply with the disclosure obligations it triggers.
The judge has given Trump until January 15 to disclose his plans regarding the defense, following a request for notification by December 18 from Smith’s team. Former U.S. Attorney Barb McQuade described the order as “big and appropriate,” noting that if Trump plans to use the advice of counsel defense, he would need to waive attorney-client privilege and turn over relevant documents to the prosecution.
Legal analyst Norm Eisen tweeted that the judge’s order puts Trump in a difficult position regarding one of his main defenses. He explained that Trump would have to disclose private communications with his attorneys to advance the defense, leaving him with no favorable options. Former U.S. Attorney Harry Litman also commented on the order, stating that it forces Trump to address the defense well in advance, preventing any last-minute maneuvers.
Joyce Vance, another former U.S. Attorney, predicted that Trump would face challenges convincing the judge to allow him to use the advice of counsel defense at trial. She noted that relying on the advice of co-conspirators, even if they are lawyers, is not acceptable. If the judge rules against Trump, the defense cannot be mentioned during the trial.
Overall, this order places Trump under scrutiny regarding his potential reliance on the advice of his lawyers, requiring him to disclose his plans and potentially waive attorney-client privilege.
