For weeks, former President Donald Trump has refused to tip his hand about whether he will invoke an advice-of-counsel defense in the federal 2020 election interference case brought by special counsel Jack Smith. It is a move that would potentially be his only decent defense, but it would also come with substantial caveats.
Now, Judge Tanya Chutkan has ordered him to clarify whether he will use the defense — and, former federal prosecutor Harry Litman wrote for the Los Angeles Times, that strategy has significant implications.
"It will probably preempt a whole lot of mischief and delay by the defendant," wrote Litman. "Trump has repeatedly suggested that he relied on his attorneys’ advice in undertaking his flagrantly unconstitutional conduct after the election. Most expressly, Trump’s lawyer John Lauro claimed on 'Meet the Press' in August that what his client was 'indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman.' Lauro added that Trump was also following Eastman’s advice when he 'petitioned Mike Pence' to refuse to certify Joe Biden’s election."
But that is not so simple a defense to make, noted Litman.
"A defendant asserting it must be able to show that he relied in good faith on his counsel’s advice that the course of conduct was legal — that is, not just that he received the faulty advice but that he took it to heart. And he must also show that he fully disclosed all material facts to his attorney before receiving the advice," he wrote. "The latter requires a step that few defendants are willing to take: waiving attorney-client privilege and disclosing all communications that will be used to establish the defense. Beyond that, a defendant must reveal otherwise privileged communications that are relevant to proving or undermining the defense even though they won’t be used at trial."
There are other obstacles to this defense that other experts have noted. For example, Trump lawyer Kenneth Chesebro's plea deal in the Georgia election racketeering case could ultimately lead him to testify against the former president, revealing his state of mind in his efforts to overthrow the election.
Ultimately, concluded Litman, "Thanks to the judge’s order, Trump won’t be able to blame his lawyers for Jan. 6 without producing a wealth of otherwise privileged materials and taking the stand to testify to his own good faith."
It might simply be better for Trump to "give it up entirely" as a defense.
