On November 8, former President Donald Trump was ordered by U.S. District Court Judge Tanya Chutkan to provide an explanation regarding his potential utilization of an advice-of-counsel defense in one of the two criminal cases that Special Counsel Jack Smith is prosecuting.
Prosecutors filed a motion on October 10 requesting that he reveal whether or not he intends to use the advice-of-counsel defense, arguing that doing so would constitute a waiver of 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.
In order for President Trump to utilize these privileged communications as a defense in court, Judge Chutkan has mandated their delivery to the government no later than January 15, 2024.
The judge stated in her opinion appended to the order that this deadline is intended to maintain the case’s trajectory towards a trial date of March 4, 2024. She has declined to reschedule on multiple occasions.
Former President Trump has entered a not-guilty plea on four counts of interference with the 2020 elections. Donald Trump legally contested the election results, as Democratic presidential candidates have done in prior elections.
Prosecutors anticipate that former President Trump will argue that his challenge to the 2020 election was based on the counsel of his attorneys.
In one instance, a legal memorandum authored by attorney Kenneth Chesebro on behalf of the Trump Organization laid out potential legal courses of action to contest the election outcomes. These courses of action entailed petitioning the U.S. Supreme Court and postponing the vote certification on January 6, 2021.
In a comparable legal proceeding in Georgia, Chesebro, in conjunction with President Trump, faced charges that implicated the former president and eighteen others in a so-called ‘racketeering conspiracy.’
Subsequent to that, Mr. Chesebro entered into a plea agreement whereby he admitted culpability on a single felony count of conspiracy to file fraudulent documents. In exchange for his testimony against the remaining defendants and a fine, the agreement nullified six additional felony counts and spared him incarceration.
Leaks and subsequent court filings have provided public access to correspondence between Chesebro and the Trump campaign.
Judge Chutkan decided, citing precedent, that in order to establish the advice-of-counsel defense, the defendant must present proof that he “fully disclosed all material facts to his attorney prior to receiving the advice at issue” and “relied in good faith on the counsel’s advice that his course of action was lawful.”
This development would result in the waiver of attorney-client privilege and the mandatory submission of those communications in court.
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