In a recent development, Judge Tanya Chutkan, who was appointed by former President Obama, has partially approved a motion filed by Jack Smith’s prosecutors. The judge has ordered former President Trump to disclose whether he intends to use the ‘advice of counsel’ defense in the January 6 case.
In August, Trump faced four charges in Jack Smith’s January 6 case in DC: 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.
In October, Jack Smith submitted a motion requesting Trump to outline his defense strategy.
“The defendant has provided public notice that he intends to rely on an advice-of-counsel defense at trial,” Smith wrote on October 10.
“When a defendant invokes such a defense in court, 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,” he added.
Chutkan approved Smith’s motion in part.
“Accordingly, the government’s Motion for Formal Pretrial Notice of the Defendant’s Intent to Rely on Advice-of-Counsel Defense, ECF No. 98, is hereby GRANTED in part and DENIED in part,” Chutkan wrote in a 3-page order.
If Judge Chutkan permits jurors to weigh whether Trump’s “reliance on his attorneys raises doubts about criminal intent” he might be forced to give up attorney-client privilege.
As reported by the Washington Examiner:
Former President Donald Trump was ordered on Wednesday to state whether he intends to argue he was acting on the advice of his attorneys as a formal defense strategy in the federal election subversion case against him.
For Trump to assert a formal advice-of-counsel defense, he would have to satisfy two main legal requirements, according to precedent in the District of Columbia.
One, defendants must show that they did not withhold any relevant information from their lawyers before they received advice about the legality of their actions. Two, defendants must also show that they attempted to apply the advice they’d received in good faith.
Should Chutkan hold that Trump has provided sufficient evidence to use an advice-of-counsel defense, she may allow jurors to consider whether Trump’s reliance on his attorneys raises doubts about criminal intent. That would force Smith to attempt to convince jurors that Trump knew he was breaking the law, even if his lawyers told him his actions were legal.
The trial for Trump’s January 6 case in DC is scheduled to begin on March 4, 2024.
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