Judge Orders Trump to Reveal Whether He Will Use Advice-of-Counsel Defense

Defendants do not have to reveal this strategy in advance, but Judge Tanya Chutkan states her order would prevent delaying the trial.

Former President Donald Trump prepares to testify during his trial in New York State Supreme Court in New York on Nov. 6, 2023. David Dee Delgado/Getty Images

U.S. District Court Judge Tanya Chutkan ordered former President Donald Trump on Nov. 8 to disclose whether he plans to use an advice-of-counsel defense in one of two criminal cases prosecuted by special counsel Jack Smith.

President Trump has been accused of interfering with the 2020 elections and has pleaded not guilty on four counts.

On Oct. 10, prosecutors filed a motion demanding he disclose whether he will use the defense, arguing that if he does it will waive attorney-client privilege for all communications.

“If [the] defendant does provide affirmative notice of that intent, he must also provide the required discovery to the government,” Judge Chutkan wrote in her new order, which set a deadline about one month later than the prosecutors requested, in line with what President Trump’s attorneys have said about when they would disclose such a strategy.

Judge Chutkan is ordering that these privileged communications be turned over to the government by Jan. 15, 2024, if President Trump plans to use the defense in court.

The judge wrote in her opinion attached to the order that this deadline is meant to keep the case on track for a March 4, 2024, trial date. She has more than once declined to move.

Waiving Privilege

Prosecutors are expecting President Trump to say that he acted on the advice of his lawyers when he challenged the 2020 elections.

For instance, attorney Kenneth Chesebro had written a legal memo for the Trump Organization outlining legal avenues to take to challenge the election results, including delaying the vote certification on Jan. 6, 2021, and bringing the issue to the U.S. Supreme Court.

Mr. Chesebro had been charged alongside President Trump in a separate but similar case in Georgia, accusing the former president and 18 others of being part of a racketeering conspiracy.

Mr. Chesebro has since pleaded guilty to one felony count of conspiracy to commit filing false documents, in a plea bargain that nulled six other felony counts and allowed him to avoid jail time in exchange for a fine and his testimony against remaining defendants.

Communications between Mr. Chesebro and the Trump Campaign have already been made public, via leaks and later court filings.

Judge Chutkan wrote, citing precedent, that the advice-of-counsel defense requires a defendant to introduce evidence that “relied in good faith on the counsel’s advice that his course of conduct was legal,” and that “he made full disclosure of all material facts to his attorney before receiving the advice at issue.”

As such, this would waive attorney-client privilege and require those communications to be introduced in court.

She ordered that should President Trump confirm he is using this defense, he must give the special counsel’s office all privileged communications, as well as those that won’t be used at trial, but are “relevant to proving or undermining” the defense.

Disclosure Not Always Required

The judge noted that the rules concerning criminal case procedures do not “expressly require advance notice” that the defense will opt for such a strategy.

“But because waiting until trial to invoke the defense—and comply with the disclosure obligations it triggers—could cause disruption and delay, some district courts have concluded that they nonetheless have inherent authority to order defendants to provide advance notice if they intend to do assert the defense,” she wrote.

“Other district courts, however, have concluded that they lack that authority.”

In this case, the question of authority is moot: President Trump’s attorneys have said that if they decide to use this strategy they will provide notice at the time jury instructions are due on Jan. 15, 2024.

However, the defense attorneys have only requested that the notice deadline be set at the same time as the jury instruction deadline and asked to provide the disclosure, if applicable, on another schedule.

The judge rejected this argument, saying the attorneys did not cite precedent for it.

“Notice without disclosure would have little practical value, and would inject undue delay into the parties’ pretrial preparations,” the judge wrote.