On Wednesday, a directive was issued to former President Donald Trump, mandating that he disclose whether his defense in the federal election subversion case will claim he acted based on legal advice from his attorneys.
This development follows a partial approval of a motion by special counsel Jack Smith’s prosecution team. They requested that Trump clarify his defense strategy, as stated in a three-page order, which sets a deadline for formal notice by January 15.
“Defendants must show that they did not withhold any relevant information from their lawyers before they received advice about the legality of their actions,” the legal team of Jack Smith articulated. Furthermore, they must demonstrate that they made a bona fide effort to follow the advice given.
The legal precedent in the District of Columbia outlines two primary requirements for asserting an advice-of-counsel defense. Trump’s trial is scheduled for March 4, 2024, with jury selection commencing on February 9, nearly a month in advance.
Earlier this year, Smith secured an indictment from a grand jury and charged Trump in early August with four felony counts. These charges relate to an alleged scheme to undermine the certification of President Joe Biden’s 2020 election victory. Trump has entered a plea of not guilty to all charges.
“When a defendant invokes such a defense in court, he waives attorney-client privilege for all communications concerning that defense,” Smith’s team stated. They added that this would entitle the government to further discovery and potentially necessitate additional investigation and litigation.
Should Judge Tanya Chutkan determine that Trump has met the evidentiary threshold for an advice-of-counsel defense, jurors may be allowed to consider whether Trump’s reliance on his attorneys casts doubt on his criminal intent. This would challenge Smith to persuade the jurors that Trump was aware of the illegality of his actions, regardless of his lawyers’ advice.