“If Trump plans to use advice of counsel defense at trial in election interference case, he waives attorney-client privilege and must turn over documents to prosecution. He can’t have it both ways,”
This is the key paragraph, at least for me:
“When a defendant invokes such a defense in court,” Smith’s office argued, “he waives attorney-client privilege for all communications concerning that defense, and the government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing.”
So if he’s going to blame his lawyers, the government can compel all of their communications in order to investigate whether he actually conspired with the lawyers to get the advice that his illegal act was actually legal. If he did (as seems likely), then he incriminates himself and his lawyers on additional conspiracy charges. If he didn’t, then he will have to own the decision.
This is something they’re going to fight tooth and nail against, so I’m curious as to what their next step is going to be.
My bet is that they will wait until the last possible moment, close of business on January 15th, and then declare they are using the advice-of-counsel defense. They will start filing motions and appeals claiming executive privileged and anything else they can think of to try and avoid turning anything over to the prosecution. When they finally loose all those appeals, they will decide to drop that defense and will assert attorney client privileged after all. In the end, they will delay the trial for months which is the whole intent. Delay, delay, delay, is the trademark Trump court strategy.
Chutkan partially granted a motion from special counsel Jack Smith’s team asking her to require Trump to declare whether he plans to use the advice-of-counsel defense, in which a defendant argues that he relied in good faith on the advice of his attorneys.
Smith in a filing last month noted that several Trump lawyers have said in media interviews that Trump was acting on the advice of his lawyers.
“When a defendant invokes such a defense in court,” Smith’s office argued, “he waives attorney-client privilege for all communications concerning that defense, and the government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing.”
Such great news.
Former U.S. Attorney Joyce Vance predicted that Trump will have a “heavy lift convincing the judge to permit him to use an advice of counsel defense at trial.”
“Among other things, because you can’t rely on the advice of your co-conspirators, even if they’re lawyers,” she wrote. “If the Judge rules against him, it can’t be mentioned at trial.”
By invoking the defense, the defendant waives attorney-client privilege and must therefore disclose to the government (1) all “communications or evidence” the defendant intends to rely on to establish the defense, and (2) any “otherwiseprivileged communications” the defendant does “not intend to use at trial, but that are relevant to proving or undermining” it. kbin direct
I wonder how long the appeal on this one is going to take.
