By
With the Manhattan district attorney’s criminal trial of Donald Trump set to open in less than two weeks, Judge Juan Merchan has ordered that neither side may file new motions without his express permission.
But that prohibition did not extend to a filing Trump made Tuesday pursuant to Merchan’s order last month. Specifically, Merchan directed Trump to disclose by Tuesday whether he intends to rely on an advice of counsel defense and “to produce all discoverable statements and communications within his possession or control” by that date, too.
“What exactly is an advice of counsel defense, Lisa?” you might be asking.
As Judge Lew Kaplan (who oversaw both E. Jean Carroll trials) explained in the lead-up to last year’s trial of Sam Bankman-Fried, it’s a collection of evidence that a defendant uses to raise reasonable doubt in the jury’s mind as to whether prosecutors have adequately demonstrated his intent to commit the crime or crimes in question. Specifically, it consists of proof that a defendant:
- “made a complete disclosure to counsel [concerning the matter at issue];”
- “sought advice as to the legality of his conduct;”
- “received advice that his conduct was legal;” and
- “relied on that advice in good faith.”
And significantly, when a defendant invokes the advice of counsel defense, that typically waives any privilege he or she could claim over communications with their lawyers about the matter in question.
In the New York criminal trial, however, Trump wants to point to his lawyers’ involvement in the Stormy Daniels settlement and related events as proof that he lacked intent, while at the same time disclaiming a “formal advice-of-counsel defense” and insisting that he is not waiving any attorney-client privilege. Instead, Trump announced in Tuesday’s filing that he “intends to elicit evidence concerning the presence, involvement and advice of lawyers in relevant events giving rise” to the 34 felony counts with which he has been charged. And he makes clear how he intends to elicit that evidence: through the testimony of witnesses, including former executives of the National Enquirer’s parent company, American Media Inc., and his former lawyer-turned-archnemesis, Michael Cohen. Collectively, Trump argues, those witnesses are expected to testify to “Trump’s awareness of counsel’s involvement in the charged conduct.”
The question now is whether Trump’s attempt to thread the needle will succeed. After all, in one of the cases he cites to support his kind-of, sort-of advice of counsel defense — the same Kaplan opinion cited above, in fact — the defendant declined a formal advice of counsel defense, opting instead to highlight Bankman-Fried's awareness that attorneys were involved in certain decisions at his companies that related to the charges against him. That involvement, the defendant insisted, could show “his good faith and lack of criminal intent.” But the government objected, and the court reasoned that merely pointing to the “presence or involvement of lawyers at or for” the defendant’s companies “without any degree of specificity about what they were present for or involved in, what their tasks were, what exactly they knew, and what the defendant knew about what the lawyers knew and were doing” could confuse the jury and prejudice the government.
Ultimately, the court ruled that the defendant could not discuss the presence or involvement of lawyers in his opening statement — and also could not offer any evidence, argument or testimony on those issues without advance notice to the court and the prosecution outside the jury’s presence. Merchan could similarly require Trump’s criminal defense team to detail, in advance, what Cohen and potentially other lawyers knew and were doing in Fall 2016 and beyond in addition to what Trump himself understood about his lawyers’ knowledge and activities. Alternatively, Merchan could find that the “informal” advice of counsel defense Trump wants to advance is not supported by New York law. Or he could — although I find this to be the least likely possibility — do nothing and let Trump proceed as he describes in the filing.
In any event, the jurors might also receive an instruction that goes something like this: “[N]o man can willfully and knowingly violate the law and excuse himself from the consequences of his conduct by pleading that he followed the advice of his lawyer”— or that his lawyer was involved directly in his conduct.
Not even a former — and, potentially, future — president.