There is much speculation that former President Trump will use the “Advice of counsel” defense in his upcoming January 6th trial. AIUI, this defense is basically that “I believed that my actions were legal based upon the advice that I was given by my attorney.” TV commentators have mentioned 2 aspects of this defense. The first is that, if you’re going to use this defense, then you waive attorney client privilege. This makes sense since you would need to show what your attorney said in order to use it as a defense.
The second aspect is the one that I’m more interested in but can’t get confirmed with a Google search. I’ve heard it said that if Trump raises the defense, then he will have to take the stand to testify. Is this true?
I am not interested in debating the merits or lack thereof of Trump testifying on his own behalf. I want to keep this FQ and not GD or P&E. The question is simply if Trump will have to testify under oath if he uses the advice of counsel defense.
The starting point is how to get the evidence in at trial, so it’s presented to the jury.
This requires somebody to testify to what the lawyers said.
One way would be to get the lawyers subpoenaed as witnesses, bring them in, and then ask them questions to elicit this testimony.
But they are facing their own indictments. Presumably, if asked such questions, they’d invoke the 5th amendment right against self incrimination and refuse to answer.
So, how else to get that evidence in?
donald would have to testify to what he understood his lawyers’ advice to be.
If Adam is Trump’s attorney but Bob was also in the room at the time when Adam advised Trump, could Bob testify as to what Adam said? (Assuming that Bob isn’t also under indictment.)
Hearsay is defined as an out of court statement that is offered in court to prove the truth of the matter asserted.
So it’s hearsay for Bob to testify to what Adam said. Adam should be the one to say it, subject to cross examination.
There are exceptions, though.
One is a statement against interest. If a person says something that is so contrary to their own interests that it exposes them to legal peril, it is presumed reliable, and would be a hearsay exception if they are not available to testify.
So, maybe it would come in.
I think it would depend on context - did Adam say something to the effect of “we’re going to be so fucked if we follow this legal theory. It has no merit”. Or were they pontificating about ideas, but never said something to indicate that this was a legal risk?
Plus, why was Bob in the room. If he was there as Trump’s flunky, to take notes on the legal advice, I wouldn’t think he could be compelled to testify. The person receiving legal advice, especially in a complex matter, can have employees who handle the record-keeping. Otherwise, the privilege would be meaningless.
I hadn’t heard this about advice of counsel. I have heard that if he wants to use a state of mind defense he will have to take the stand. So if he claims he really believed the election was stolen he’ll have to take the stand and be subject to cross examination. I don’t know if either of these issues will come up the way Smith has laid out the charges. He’d need advice of counsel from non-co-defendants, and his belief that the election was stolen is not a excuse for his own attempt to steal it.
This issue has confused me since it surfaced and I am most definitely not a lawyer, but does not, or how does “ignorance of the law is no excuse” apply? Or is that just some old saw that has no real basis in law?
IOW, does it actually matter if trump sincerely believed that his actions were legal?
The statement “this is a legal plan” isn’t being offered for the truth of the matter asserted, but to prove Trump got that advice from an attorney. It would be, IMO, admissible.
But are trump’s beliefs on the legality of his past actions even relevant?
If I truly believed that it was legal for me to beat the crap out of someone in a parking lot, then smash a window in his car, and then drive off, would that then be ok? ISTM that this is analogous.
I believe some of the charges use the term « wilfully ». That kind of language requires a higher level of knowledge by the accused that what they’re doing is unlawful. It can’t be a purely subjective view by the accused, because then an accused could always say « I thought it was lawful » and be acquitted.
Exactly what sort of evidence is needed by the prosecution to prove wilful actions is likely a complex area of US federal evidence, on which I can’t pretend to know the answer.
I’m sure Jack Smith and his team have looked into it, however.
Ignorance of the law is a valid defense for some crimes, but not the ones Trump is charged with. Some violations of law are excepted as malum prohibitum, meaning prohibited by statute, as opposed to malum in se, which means wrong in itself. Ignorance of an obscure law that would not be known to an ordinary person is a valid defense. The charges of fraud and attempts to interfere with the electoral process should be considered illegal by anyone and ignorance of the law would be no excuse.
If Bob and his minions are in the room getting advice from lawyer Chuck, then I gather we are saying the minions too are covered by attorney client privilege? Does that mean any of the attendees other than the lawyer can waive attorney client privilege, at least for themselves? (I guess, depending on how badly they want to stay employed?)
How many participants have to waive privilege before the attorney can no longer claim it? All of them? The principal employer/client?
How is hearing a conversation you were present for not admissible?
IIRC some discussion earlier, privilege only applied to legal advice, not to general conversation?
I guess what I meant is if a witness can say "I was there and heard when Chuck told Bob ‘that’s legal in my opinion’ " (or the opposite) then how could that not be admissible in Bob’s trial?
If the question is “what did Adam say in the meeting?” then I think this testimony is not hearsay, because Bob is a direct witness to what Adam said in the meeting.
If the question is “who shot JR?” and Bob’s testimony is “Adam said that Charlie shot JR”, that’s clearly hearsay.
The Votemaster has an interesting take on this today. Here is their answer, in part:
"The short answer is that it does not matter what Trump believed about the election. Imagine that you believe a grocery store overcharged you for a gallon of milk, and they refuse to refund the difference. Heck, imagine they actually did overcharge you and then refused to refund the difference. You are free to work through whatever their appeals process is (say, contact the regional manager). Or you can sue in small claims court. But you are not entitled to rob the store to make yourself whole.
Similarly, even if Trump believed he won the election, that does not justify acts of conspiracy, fraud, and interference with a government proceeding that he undertook. You don’t get to take the law into your own hands just because you think you’ve been wronged."
If you believe you have been wronged, there is a a difference between doing something to obtain reparations that you think is legal vs doing something that you think is illegal.
In your scenario, you know robbing someone - even someone who overcharged you - is wrong. But what if someone overcharged you, then (say) some of their property came legally into your hands and your lawyer advised you it was legal to keep it in recompense but as it turns out that advice was wrong?
I make no comments on merits but I suspect that Trump’s argument will not be that he thought the election was stolen so it was legal to steal it back. His argument will be that he believed the election was being stolen and - on counsel’s advice - he believed he was taking legal steps to prevent that.
To be clear I’m not for a moment suggesting Trump received any such legal advice, or at least none that he believed in good faith. But that may be his argument.