Special counsel Jack Smith is telling Trump to "put up or shut up" about whether he intends to use a very specific legal defense that could decide the entire trajectory of the 2020 election interference case, former U.S. Attorney Barbara McQuade wrote for MSNBC on Thursday.
"In a motion filed this week, the special counsel asked Judge Tanya S. Chutkan to order Trump to provide formal pre-trial notice of any intent to rely on advice of counsel as a defense in the federal election interference case," wrote McQuade. "According to the motion, Trump and his lawyers have 'repeatedly and publicly' stated an intent to assert the defense at trial. The Dec. 18 exhibit list deadline, Smith argues, is the time for Trump to put up or shut up."
What makes this particularly important, wrote McQuade, is that if Trump intends to use this defense, he loses the protection of attorney-client privilege, as those communications become available for scrutiny — and could be compelled to turn over all documents related to that advice.
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Moreover, prosecutors are already looking to poke holes in this argument, by investigating things like whether Trump knew Rudy Giuliani, one of his close legal advisers, had a drinking problem and was allegedly intoxicated while giving him advice.
"Until now, Trump has been able to have it both ways — protect testimony and documents from disclosure as privileged, while also claiming that his conduct was lawful because he simply relied on what his lawyers told him," wrote McQuade. And this has worked for him because "in the court of public opinion, where Trump seems most focused at the moment, his reliance on lawyers may sound perfectly reasonable to supporters. But Smith’s motion will push Trump to make a decision — use the advice of counsel defense at trial or protect every document, memo, email, text message sent between him and Sidney Powell, John Eastman, Rudy Giuliani and the other lawyers [former Attorney General] William Barr referred to as a 'clown car.'"
Ultimately, concluded McQuade, "Regardless of whether Smith’s motion succeeds, at some point Trump will have to decide whether asserting what may be a flimsy defense is worth sharing his trove of secrets."
