Jack Smith says Trump's key defense 'necessarily fails' in new court filing

Special counsel Jack Smith put former President Donald Trump on notice Wednesday in a new filing that if he seeks to use "advice of counsel" defense in the federal 2020 election interference case, it would be undercut by the fact that three of his lawyers have already taken deals.

The lawyers in question — Sidney Powell, Kenneth Chesebro, and Jenna Ellis — were indicted alongside Trump as part of the completely separate election racketeering case in Georgia brought by Fulton County District Attorney Fani Willis, but their plea deals, and potential testimony, could have bearing on the federal case too.

"Because any such defense likely will involve multiple lawyers, arise in opening statements and the Government’s case-in-chief, and require decisions regarding the scope of the defense and admissibility of evidence, it is essential that disclosure occur at the time that the defendant provides notice of the defense," wrote Smith's prosecutors. "If the defendant notices such a defense, there is good reason to question its viability, especially because in the time since the Government filed its motion three charged co-defendant attorneys pleaded guilty to committing crimes."

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This comes after other commentators have noted that the pleas are a serious obstacle to Trump relying on the excuse that he was simply doing what his lawyers told him to do.

There are other drawbacks to the defense, including that it would strip his communications of attorney-client privilege.

"The Court should not allow the defendant to withhold formal notice of his already announced affirmative defense until January and then proceed to withhold related and required discovery for several additional weeks," Smith's new filing concluded. "To prevent disruption and delay, the Court should exercise its discretion to require the defendant to provide notice of his intent to advance an advice-of-counsel defense, and related discovery, on December 18, 2023."